Have you or a loved one been charged with stalking in Texas? It is critical to understand Texas criminal law regarding Stalking and what the State of Texas must prove to sustain a conviction. Remember, you don’t have to prove anything. The burden of proof remains on the prosecutor and State of Texas. The government must prove beyond a reasonable doubt that you committed the crime of stalking. Failure to prove every element of the crime of stalking will result in a dismissal or not guilty verdict on your stalking case.
Not all domestic violence crimes involve assault or physical altercations. Under the umbrella of domestic violence is threatening behavior that puts the victim in fear of imminent danger. By this definition, stalking may be considered an act of domestic violence.
In Texas, stalking isn’t just a misdemeanor crime or a potential act of domestic violence – it’s a felony. Because of this, if you have been charged with stalking, you could face quite serious penalties that could affect your freedom and your future.
What exactly is stalking, though, and what actions or accusations led to your stalking charges in the first place? Take the time to learn about your charges before reaching out to an experienced Texas defense lawyer and building your defense strategy.
What Is Stalking According to Texas Statutes?
Texas law defines stalking as a series of actions committed by one person against another that put the victim in fear of imminent danger, including:
- Bodily injury or death
- Bodily injury or death to the victim’s partner or family member
- Offenses committed against their property
Stalking is also defined by other emotions that the offender’s actions may incite, including feelings of harassment, annoyance, alarm, torment, or embarrassment.
All these factors must be present for a person to be convicted of stalking. The same victim (or their property) must be the target of the threat – general threats will not be considered in stalking cases.
Offenders also do not have to make specific threats against the victim to be charged. The fear of burglary, trespassing, or other crimes against the victim’s property may be enough to qualify as criminal actions in Texas.
How do we measure if the actions were truly committed in a manner that objectively placed the alleged victim to be in fear of imminent danger? The law states that the actions must have caused “a reasonable person to fear bodily injury or death for himself or herself.” What is “reasonable” under Texas criminal law when it relates to a stalking case? This is a fact issue that would be determined at a criminal jury trial.
It is a scary place to be when you realize that the decision between your freedom and an arrest warrant is based upon someone’s opinion. It is not uncommon for an alleged victim to exaggerate their emotions when it comes to another person’s actions by claiming they were in fear for their life or bodily injury. Most criminal investigators will take the word of the alleged victim and proceed forward with a stalking charge.
Stalking Doesn’t Have to Be Committed in Person
An individual in Fort Worth may still be charged with harassment or stalking against a person in a different part of Texas, even if the victim has not physically seen or interacted with the alleged offender.
Threats that are sent over text messages or online are still considered threats. If these messages are sent to the same person and include specific threats, they will qualify as stalking.
Moreover, Texas may still charge someone for stalking even if they did not send the messages themselves. In other words, if the alleged offender has someone acting on their behalf, the offender may still be charged with stalking or harassment.
What Is The Difference Between Stalking And Harassment In Texas?
One of the most common areas of confusion by criminal detectives and the general public is the difference between stalking and harassment under Texas criminal law. It is not uncommon for a criminal investigator to overcharge someone with stalking when the appropriate charge should have been harassment.
Harassment is a Class B Misdemeanor under Texas criminal law. Harassment is punishable by up to 180 days in the county jail and up to a $2,000 fine. A person commits the crime of harassment if, with intent to harass, annoy, alarm, abuse, torment or embarrass another, the person:
- Initiates communication and in the course of the communication makes a comment that is obscene.
- Threatens, in a manner that is reasonably likely to alarm the person receive 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.
- Conveys, in a manner that is reasonably likely to alarm the person, a false report, which is known by the conveyor to be false, that another person has suffered death or serious bodily injury
- Causes the telephone of another to ring repeatedly
- Makes a telephone call and intentionally fails to hang up or disengage
- Sends repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass or offend another.
As you can see, the primary difference between stalking and harassment is that harassment involves behavior that is done with the intent to annoy or alarm another; while stalking is behavior that is initiated with a reasonable belief it will cause the alleged victim to be in fear of bodily injury or death.
The biggest problem is that this difference is subjective. The alleged victim may be dramatic and prone to exaggerating how simple or benign actions of another could somehow cause them to be in fear of serious bodily injury or death.
For example: one of the most common instances of harassment and stalking is online or cyber stalking or harassment. What if you receive a text message from someone and you find it annoying or alarming? What happens if you get repeated emails from someone that you find disturbing or annoying? What if you can’t tell if someone is joking when they make an electronic communication that you initially think may have been offensive or threatening? Should there be a charge of stalking? Harassment? Recently, Texas appellate courts have place limitations on electronic communications being the basis for harassment and some stalking cases. Essentially, if someone is creating a subjective opinion that multiple text messages or emails creates annoyance or alarm, the court has said this is protected speech under the 1st Amendment of the U.S. Constitution. Think about it – how many emails have you gotten from a salesperson? What about those annoying car warranty calls? If everything that was annoying, alarming, or offensive was criminal, everyone would be subject to arrest.
Penalties for Stalking Charges in Texas
Stalking is a felony of the third degree in Texas. If you are convicted, you may face penalties including:
- Between two and 10 years in prison
- Up to $10,000 in fines
Felony convictions may also result in the temporary loss of citizenship rights or severe limitations on getting a job or loan. Being a convicted felon severely limits your future and places you at risk of limited job prospects and ineligibility for government benefits.
Offenders may also be subject to a protective order. The terms of a protective order may include required counseling, the loss of custody, or prohibitions on contacting or visiting the victim. Protection orders may last for up to two years. Offenders who violate their protective order may be subject to jail time and additional fees.
Prior Stalking Conviction? Texas Might Hit You with Even More Serious Charges
Not all stalking crimes are third degree felonies – some are worse. Aggravating factors may increase charges to a felony in the second degree. For example, offenders who have a stalking crime on their criminal record will have to face elevated charges, even if the crime was committed in a different state. If you are convicted of a felony in the second degree, your prison sentence may be doubled – offenders can face up to 20 years behind bars.
Therefore, it is very important to fight back against all criminal charges, even if it is your first arrest. Just one past conviction could result in years of additional prison time down the road.
Defenses for Stalking Charges in Texas
So, what can you do if you believe have been wrongfully charged with Stalking? You must work with an experienced and aggressive criminal defense attorney to evaluate your stalking case facts and formulate a plan of action to dismiss your stalking case.
One possible defense to a stalking charge in Texas can be that the behavior in question would not cause a reasonable person to be in fear of bodily injury or death. Remember, not everyone’s opinion is reasonable. Maybe your alleged victim has a motive to exaggerate or lie about what happened to gain an advantage over you if you are arrested for a stalking charge. We see this happen frequently in situations of child custody or divorce.
For example: we handled a stalking matter where a boyfriend admirer sent flowers to an ex-girlfriend with a short note that listed his initials and used a pet name that both were familiar with. He also sent a short voicemail saying he couldn’t wait for her to open the gift he sent her. She freaked out and took the note as some sort of veiled threat and believed that it was an indication that these were the last flowers she would ever get and pressed stalking charges against him with the unreasonable opinion that she was now in fear of serious bodily injury or death.
In a situation like this, your criminal attorney can gather this same evidence, couple it with other text messages or communications between the parties that show context and make a grand jury presentation. Every felony in Texas is required to be presented to a grand jury for indictment to ensure probable cause can be established. The grand jury is basically a filtering stage of the criminal justice system and the best criminal defense attorneys make use of the grand jury system to ensure their client’s case is presented fairly and accurately for a favorable resolution.
Because stalking is a 3rd degree felony, it must be presented to a grand jury. Upon presentation of the stalking case to the grand jury, they will have the option to keep the case a felony stalking charge, lower it to a misdemeanor charge of harassment or other applicable misdemeanor, or dismiss the charge through a No Bill. A No Bill is a rejection of the charge and is essentially an exoneration. A No Bill will allow you to be eligible to have your stalking arrest and charges expunged from your criminal record.
If you are facing a stalking charge in Fort Worth, Tarrant County, or other city in North Texas, don’t hesitate to contact The Hampton Criminal Defense Attorneys, PLLC. We have a team of 5 Former Prosecutors that stand ready to work for you. We offer free consultations and would be happy to speak about your facts and determine a plan of action for your criminal defense. You owe it to yourself, your family, and your freedom – Call Now!
About the Author:
After getting his Juris Doctor from the University of Houston Law Center, Jeff Hampton began practicing criminal law in Texas in 2005. Before becoming a defense attorney, he worked as a prosecutor for the Tarrant County District Attorney’s Office – experience he uses to anticipate and cast doubt on the arguments that will be used against his clients. Over the course of his career, he has helped countless Texans protect their rights and get the best possible outcome in their criminal cases. His skill has earned him recognition from the National Trial Lawyers (Top 100 Trial Lawyers) and Avvo (Top Attorney in Criminal Defense, Top Attorney in DUI & DWI, 10/10 Superb Rating), and he is Lead Counsel rated.
