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State v. V.T.

Court of Appeals of Texas, Third District, Austin

May 16, 2019

The State of Texas For the Protection of P. B., Appellant
V.T., Appellee


          Before Justices Goodwin, Baker, and Triana.



         The 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 court's order.


         In an 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.

         Based 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.[1] 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 go."

         The 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.

         Finally, 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.

         At the 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.


         We 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.).

         "When 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 (Tex. 2018).

         "When 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).


         Chapter 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).

         However, 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).

         The 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.

         A 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).

         A 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]
(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, embarrassed, ...

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