Stalking means repeatedly threatening bodily injury or death toward a person, that person’s family member, or that person’s property. Stalking must be within the same scheme or course of conduct. Stalking is a felony. Sometimes the charge is warranted. However, it is also one of the most confusing and poorly-written statutes in the Texas Penal Code. Stalking charges can arise in situations in which the police really shouldn’t be involved—situations in which both parties are at fault, and the only difference between the “victim” and the person who eventually becomes the “defendant” comes down to who called the police and who did not. I have seen this first-hand in my practice. This page breaks down and discusses the statute on Stalking, Section 42.072 of the Texas Penal Code.
What is Stalking?
Stalking can be either two Harassment offenses or two threats. The Harassment offenses or threats can be directed to either a person, a person’s family, or a person’s property. Harassment, a Class B misdemeanor, is discussed in more detail below. There is a requirement that they must be part of the same scheme or course of conduct. Here is the language from the statute on Stalking, Texas Penal Code 42.072:
(a) 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 that:
(1) Constitutes an offense under section 42.07, or that the actor knows or reasonably should know that the other person will regard as threatening:
(A) bodily injury or death for the other person;
(B) bodily injury or death for a member of the other person’s family or household or for an individual with whom the other person has a dating relationship; or
(C) that an offense will be committed against the other person’s property
(2) causes the other person, a member of the other person’s family or household, or an individual with whom the other person has a dating relationship to be placed in fear of bodily injury or death or in fear that an offense will be committed against the other person’s property, or to feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended; and
(3) would cause a reasonable person to:
(A) fear bodily injury or death for himself or herself;
(B) fear bodily injury or death for a member of the person’s family or household or for an individual with whom the person has a dating relationship;
(C) fear that an offense will be committed against the person’s property; or
(D) feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended.
The statute is very confusing and complicated. And it can be even more confusing and complicated when applied to actual real-world events. Although, the bottom line is that the person receiving the threat or receiving the unwanted conduct must believe the conduct is threatening, at the very least, bodily injury. Under 42.072(a)(1), when you are dealing with two or more acts of Harassment, it is subjectively up to the person receiving the threat whether the threat exists. This can be a real problem when it comes to enforcement, and can lead to weak cases getting prosecuted. When we are dealing with a person’s perception of events, criminal charges can be driven by subjective emotion and overreaction and spite and resentment. as opposed to objective punishment of bad acts.
What is a Harassment?
Harassment is a very closely related crime that is a Class B. Harassment is a lesser-included offense of Stalking. As mentioned above, two offenses of Harassment directed toward the same person, person’s family, or person’s property, can amount to Stalking. These two offenses do not need to be proven beyond a reasonable doubt for someone to be indicted for felony Stalking. Harassment is found in Chapter 42, Section 42.07. Here is some of the pertinent language from the statute:
(a) A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrasses another, the person:
(1) initiates communication and in the course of the communication makes a comments, request, suggestion, or proposal that is obscene;
(2) threatens, 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 the person’s family or household, or the person’s property;
(3) conveys, in a manner reasonably likely to alarm the person receiving the report, a false report, which is known by the conveyor to be false, that another person has suffered death or serious bodily injury;
(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, embarrasses, or offend another;
(5) makes a phone 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.
It is clear how easily a person might be charged with Harassment, and potentially charged with Harassment a second time, and then could be facing a Stalking charge. All it might take to get indicted for Stalking is sending someone repeated text messages or repeatedly calling them, regardless of whether or not they are repeatedly calling you, repeatedly sending you similar text messages as well. The major problem with this statue is that it is not written specifically enough to prevent a person from catching a felony charge who doesn’t deserve it.
What is the Same Scheme and Course of Conduct?
To get from misdemeanor Harassment to felony Stalking requires at least two separate incidents involving the same victim. These incidents must involve the same scheme or course of conduct. This doesn’t mean that the incidents must be delivered in the same way. The same scheme or same course of conduct can involve different kinds or types of harassment, provided the actors are the same. For instance, one incident can be a text message, or a series of texts messages, and the next incident can be a phone call, or the next incident could be a face-to-face argument. the same Courts have interpreted scheme and course of conduct broadly. For instance, one appellate court allowed a scheme or course of conduct encompass a period of 14 years.[i]
What Level Charge is Stalking?
Stalking is either a third-degree felony or a second-degree felony. A third-degree felony carries a potential range of punishment of between 2 and 10 years in prison and up to a $10,000 fine. Stalking can be a second-degree felony if a person has a prior conviction for Stalking. These charges can be bargained down to misdemeanors. These charges can be both dismissed or won at trial. Probation can be available as well. If you or a loved one is facing a Stalking charge, call me to discuss your defense.
[i] Ponier v. State, 326 S.W. 3d 373 (Tex. App.—Houston [14th Dist.] 2010) In this case, the court affirmed the conviction on the evidence that the appellant repeatedly harassed and threatened the defendant on several occasions during a course of time between 1993 and 2007. Behavior included driving by defendant’s home, sitting in a parked car outside defendant’s home, making threatening phone calls to her at home and at work, and threatening to kick in her door.