Court of Appeals of Texas, Third District, Austin
The State of Texas For the Protection of P. B., Appellant
THE 22ND DISTRICT COURT OF COMAL COUNTY NO. C2018-0170A, THE
HONORABLE DIB WALDRIP, JUDGE PRESIDING
Justices Goodwin, Baker, and Triana.
D. TRIANA, JUSTICE.
State of Texas appeals from the district court's order
denying the State's application, filed on behalf of P.B.,
for a permanent protective order against appellee V.T.,
P.B.'s ex-boyfriend. See Tex. Code Crim. Proc.
art. 7A.03. On appeal, the State asserts that the district
court abused its discretion in failing to make adverse
inferences against V.T. following his invocation of the Fifth
Amendment privilege against self-incrimination and that there
is insufficient evidence to support the district court's
denial of the protective order. We will affirm the district
affidavit that was attached to the State's application
for a protective order, P.B. averred that she and V.T. had
been in an "intimate relationship" from May 2017
until December 2017 and that during that time, she had
"allowed [V.T.] to take a few photographs of [her] while
[she] was naked and take some videos of [V.T. and P.B.]"
together. P.B. claimed that when she told V.T. that she
wanted to end their relationship, he threatened to post and
distribute online the videos and images of P.B. that he had
in his possession unless she agreed to delete her online
dating profile and have sex with him. P.B. stated that she
agreed to have sex with V.T. "out of fear that he would
follow through on his threats to post the pictures."
P.B. further averred that when P.B. again attempted to end
their relationship approximately two months later, V.T.
renewed his threat to release the photographs. Additionally,
P.B. claimed, V.T. had impersonated her online, posting an
advertisement on Craigslist stating that P.B. "was
looking for male company that night" and had
"videos for proof." According to P.B., V.T. later
texted her and apologized for posting the advertisement.
on the above allegations, the district court granted a
temporary protective order on February 1, 2018, and set a
hearing for February 16, 2018, on the State's request for
a permanent protective order. After several resets of the
hearing and extensions of the temporary protective order, the
hearing was held on June 27, 2018. However, on the morning of
the hearing, the State sought a further extension because
P.B., according to the prosecutor, was out of town on a
"planned trip" that she had booked months earlier.
Counsel for V.T. opposed the extension, arguing that V.T. was
ready to proceed and that while "the alleged victim is
on vacation," they were "here worried about this
protective order." The district court denied the request
for an extension, observing that the State "got this
setting" and that "they ought to be ready to
hearing was held that afternoon. Initially, the State asked
the district court to take judicial notice of P.B.'s
affidavit, summarized above, setting forth the specific
allegations against V.T. Counsel for V.T. objected to the
affidavit as hearsay, and it was not admitted into evidence.
The State then called Detective Rebekah Coons of the Comal
County Sheriff's Office, who testified that she had
investigated V.T. for the offense of online impersonation.
Detective Coons explained that she had reviewed a post on
Craigslist that "made it look like [P.B.] had posted the
ad looking for company for the night." Coons added that
during the investigation, P.B. had given her text messages
and emails from V.T. in which V.T. had apologized for posting
the ad. Coons believed that it was "more likely than not
it was [V.T.] who had sent the messages." The State also
asked Coons if she believed that V.T. was responsible for
online impersonation, and she answered in the affirmative.
Counsel for V.T. objected to the lack of foundation for this
testimony, arguing that "[t]here's no information
provided as to how she drew these conclusions." Although
the district court implicitly overruled the objection by
"allowing [the State] to put forth this testimony,"
it noted that the testimony was "rather conclusory"
and that it had "no foundation to base the
conclusions." Finally, Coons testified that she had
submitted a case against V.T. to the district attorney's
office for the offense of online impersonation. The State did
not elicit any further testimony from Coons pertaining to the
status of that case.
the State called V.T. After counsel informed the district
court that V.T. was "just going to plead the Fifth the
whole time," the district court advised V.T. that
although he had a "constitutional Fifth Amendment right
to remain silent," exercising that right could be held
against him in this civil proceeding. V.T. indicated that he
understood that risk, and the State then proceeded to ask him
numerous questions concerning his past relationship with P.B.
and her specific allegations against him. As we discuss in
more detail below, in response to each question, V.T.
answered, "I would like to plead the Fifth." The
State presented no further evidence.
conclusion of the hearing, the district court denied the
application for a permanent protective order against V.T. and
later made findings of fact and conclusions of law. In its
findings, the district court indicated that it did not
consider either P.B.'s affidavit or her absence from the
hearing in reaching its decision. Nevertheless, the district
court also found that "absent [P.B.'s] live
testimony, which would have given [V.T.'s] attorney an
opportunity for cross-examination, the evidence profferred at
the June 27, 2018, hearing was insufficient to show that
[P.B.] is the victim of sexual assault or abuse, stalking, or
trafficking." Additionally, although the district court
found certain testimony by Detective Coons to be
"credible and true," it also found that her
"testimony, in and of itself," was insufficient to
support the issuance of a protective order. Specifically, the
district court found that "Detective Coons did not offer
a sufficient evidentiary foundation for the text messages she
referenced at the hearing" and that "the text
messages attributed to [V.T.] are not a sufficient basis for
a protective order." Finally, the district court made
two adverse inferences against V.T. based on V.T.'s
invocation of his Fifth Amendment privilege, finding that
V.T. knew P.B. and that he had a relationship with her.
However, the district court declined to make any other
adverse inferences against V.T. The district court ultimately
found that "there are not reasonable grounds to believe
that P.B. was the victim of sexual assault or abuse,
stalking, or trafficking," "due to the lack of
admissible evidence and/or testimony relevant thereto."
This appeal by the State followed.
review a trial court's decision to grant or deny a
Chapter 7A protective order for legal and factual sufficiency
of the evidence. See Webb v. Schlagal, 530 S.W.3d
793, 802 (Tex. App.-Eastland 2017, pet. denied);
Shoemaker v. State, 493 S.W.3d 710, 714-15 (Tex.
App.-Houston [1st Dist.] 2016, no pet.); Garcia v.
Tautenhahn, 314 S.W.3d 541, 544 (Tex. App.-Corpus
Christi 2010, no pet.); see also Eckchum v. State,
No. 03-15-00270-CV, 2016 Tex.App. LEXIS 7096, at *5-6 (Tex.
App.-Austin July 7, 2016, no pet.) (mem. op.).
a party attacks the legal sufficiency of an adverse finding
on an issue on which she has the burden of proof, she must
demonstrate on appeal that the evidence establishes, as a
matter of law, all vital facts in support of the issue."
Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex.
2001) (per curiam); see Garcia, 314 S.W.3d at 544.
"In a legal sufficiency challenge, we consider whether
the evidence at trial would enable a reasonable and
fair-minded fact finder to reach the verdict under
review." Gunn v. McCoy, 554 S.W.3d 645, 658
(Tex. 2018) (citing City of Keller v. Wilson, 168
S.W.3d 802, 827 (Tex. 2005)). "We view the evidence in
the light most favorable to the fact finding, indulging every
reasonable inference that would support it and disregarding
contrary evidence unless a reasonable factfinder could
not." Bos v. Smith, 556 S.W.3d 293, 299-300
a party attacks the factual sufficiency of an adverse finding
on an issue on which she has the burden of proof, she must
demonstrate on appeal that the adverse finding is against the
great weight and preponderance of the evidence." Dow
Chem. Co., 46 S.W.3d at 242; Garcia, 314 S.W.3d
at 544. "When reviewing an assertion that the evidence
is factually insufficient to support a finding, a court of
appeals sets aside the finding only if, after considering and
weighing all of the evidence in the record pertinent to that
finding, it determines that the credible evidence supporting
the finding is so weak, or so contrary to the overwhelming
weight of all the evidence, that the answer should be set
aside and a new trial ordered." Crosstex N. Tex.
Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 615 (Tex.
2016). When conducting a factual sufficiency review, a court
must not substitute its judgment for that of the factfinder,
who "is the sole judge of the credibility of witnesses
and the weight to be given to their testimony."
Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d
757, 761 (Tex. 2003).
7A of the Code of Criminal Procedure allows victims of
certain crimes to obtain permanent protective orders against
the offenders who committed those crimes. See Tex.
Code Crim. Proc. art. 7A.01-.03. If the trial court finds
that "there are reasonable grounds to believe that the
applicant is the victim of sexual assault or abuse, stalking,
or trafficking," then the trial court "shall issue
a protective order." Id. art. 7A.03(a)-(b). The
order "may be effective for the duration of the lives of
the offender and victim or for any shorter period stated in
the order." Id. art. 7A.07(a).
Chapter 7A applies only to crimes that are specifically
listed in the statute. Under the current version of Chapter
7A, those crimes are: continuous sexual abuse of a child;
indecency with a child; sexual assault; aggravated sexual
assault; stalking; trafficking of persons; continuous
trafficking of persons; and compelling prostitution.
Id. art. 7A.01(a).
application for a protective order in this case did not
specify the crime that V.T. allegedly committed, but instead
alleged generally that P.B. was "a victim of sexual
assault or abuse, stalking, or trafficking." Because
there were no allegations in P.B.'s affidavit to suggest
that V.T. had committed the offenses of sexual abuse or
trafficking, the only possible offenses that would authorize
a permanent protective order in this case were sexual assault
and stalking. The State had the burden to prove at the
hearing that P.B. was a victim of one of those offenses.
See Webb, 530 S.W.3d at 803-05; Shoemaker,
493 S.W.3d at 718-19; Garcia, 314 S.W.3d at 544-46.
person commits the offense of sexual assault if the person
intentionally or knowingly causes the penetration of the anus
or sexual organ of another person by any means, without that
person's consent. Tex. Penal Code § 22.011(a)(1)(A).
A sexual assault under Subsection (a)(1) is without the
consent of the other person if the actor compels the other
person to submit or participate by the use of physical force,
violence, or coercion. Id. § 22.011(b)(1).
person commits the offense of stalking 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 . .
(2) causes the other person . . . to feel harassed, annoyed,
alarmed, abused, tormented, embarrassed, or offended; and
(3) would cause a reasonable person to:
(D) feel harassed, annoyed, alarmed, abused, tormented,