The Birds Nest - Training, Educational, & Opinions

Howard County Justice of the Peace Issues Warrant for Another Howard County Justice of the Peace

On February 5, 2021, a warrant was issued by a Justice of Peace in Howard County on Robert Fitzgibbons; who was (at the time) a Justice of the Peace.

The warrant was for Stalking:

The affidavit claims that Fitzgibbons continually engaged in conduct towards a Micheal Anderson that placed Anderson in fear of bodily injury or death or to feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended.

The report claims that each of the nine incident included Fitzgibbons being in proximity to Anderson and included following Anderson whenever he traveled.

The investigation revealed that Fizgibbons was at Anderson’s place of employment and residence on multiple occasions and such presence caused Anderson to be alarmed and fear for his safety.

It appears Anderson may have some kind of relationship with Fitzgibbons ex-wife and such relationship may have been the driving force for the continued physical presence and actions towards Anderson.

It was also learned that Fitzgibbons is a Big Spring Reserve Peace Officer. The Big Spring Police Department has submitted the Criminal Charge Notification to the Texas Commission on Law Enforcement (TCOLE).

A review of Fitzgibbons personnel records from Big Spring shows some past conduct issues: in the early 1990’s. No other disciplinary actions were noted in the Texas Public Information Act (TPIA) release.

As the matter relates to our opinion on whether a Justice of the Peace should be able to issue a felony warrant, we believe there are certain limitations. Such opinion is published HERE.

The Texas Penal Code defines Stalking as the Following:

Sec. 42.072.  STALKING.  (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 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.

(b) 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 of an offense under this section or of an offense under any of the following laws that contains elements that are substantially similar to the elements of an offense under this section:

(1) the laws of another state;
(2) the laws of a federally recognized Indian tribe;
(3) the laws of a territory of the United States; or
(4) federal law.

(c) For purposes of this section, a trier of fact may find that different types of conduct described by Subsection (a), if engaged in on more than one occasion, constitute conduct that is engaged in pursuant to the same scheme or course of conduct.

(d) In this section:

(1) "Dating relationship," "family," "household," and "member of a household" have the meanings assigned by Chapter 71, Family Code.
(2) "Property" includes a pet, companion animal, or assistance animal, as defined by Section 121.002, Human Resources Code.

The Texas Penal Code defines 42.07, Harassment as the following:

Sec. 42.07.  HARASSMENT.  (a)  A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, the person:

(1) initiates communication and in the course of the communication makes a comment, 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, 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.

(b) 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:(A) a communication initiated through the use of electronic mail, instant message, network call, a cellular or other type of telephone, a computer, a camera, text message, a social media platform or application, an Internet website, any other Internet-based communication tool, or facsimile machine; and(B) 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.

(c) An offense under this section is a Class B misdemeanor, except that the offense is a Class A misdemeanor if:

(1) the actor has previously been convicted under this section; or
(2) the offense was committed under Subsection (a)(7) and:(A) the offense was committed against a child under 18 years of age with the intent that the child:(i) commit suicide; or(ii) engage in conduct causing serious bodily injury to the child; or
(B) the actor has previously violated a temporary restraining order or injunction issued under Chapter 129A, Civil Practice and Remedies Code.

In the affidavit sworn to on Fitzgibbons, it appears Fitzgibbons committed actions which can be described as intending to harass, annoy, alarm, abuse, torment, or embarrass another by threats, 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.

The terminology “reasonably likely,” is the cornerstone to support an offense under the circumstances; as well as “intent.” Both elements must be proven in order to determine an offense was committed under the Harassment code.