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Lopez v. Crisanto

Court of Appeals of Texas, Eighth District, El Paso

August 28, 2019

LEAH BELINDA LOPEZ, Appellant,
v.
LILIA ISELA CRISANTO, Appellee.

          Appeal from 65th District Court of El Paso County, Texas (TC # 2017DCM1462)

          Before McClure, C.J., Rodriguez, and Palafox, JJ.

          OPINION

          ANN CRAWFORD McCLURE, CHIEF JUSTICE

         This is an appeal from an order granting a protective order in favor of Appellee Lilia Isela Crisanto and against Appellant Leah Belinda Lopez, based on a finding that Crisanto was the victim of stalking. Lopez contends that the trial court's finding was not supported by legally or factually sufficient evidence. For the reasons set forth below, we disagree, and we therefore affirm the trial court's order.

         PROCEDURAL AND FACTUAL BACKGROUND

         On March 3, 2017, Crisanto applied for a protective order pursuant to Article 7A.01 of the Texas Code of Criminal Procedure, alleging that Lopez had engaged in conduct that constituted stalking. The trial court held a hearing on Crisanto's application on October 23, 2017. Although Lopez was duly notified of the hearing, she did not personally appear at the hearing, but was represented by counsel.[1]

         At the hearing, Crisanto testified that prior to their divorce in April of 2017, Lopez and her then-husband, Jose Crisanto, began having an affair. According to Crisanto, she learned of the affair sometime in 2016 when Lopez sent her an e-mail to which Lopez attached photographs of Crisanto's husband and Lopez engaged in sexual intercourse, together with the following message: "[T]his is what I'm doing with your husband." Crisanto testified that Lopez thereafter sent her multiple e-mails and as many as 50 text messages, to which she attached additional photographs of Lopez and Crisanto's husband having anal and oral sex. At least eight of the photographs were introduced into evidence at the hearing, and Crisanto identified them as being photographs Lopez had sent her through electronic means. Lopez presented no evidence to rebut Crisanto's testimony that Lopez was the sender of the various communications in question.

         Crisanto also recalled that when she went into her front yard one morning in March of 2017, she found four "inappropriate" photographs that Crisanto believed Lopez had left in the yard for her to find, which again depicted Lopez and Crisanto's husband engaged in various sexual acts. Crisanto testified that there was a message on the back of one of the photographs, which she believed Lopez had written, to the effect that the photographs were "evidence" that Crisanto's husband was "still f***ing" her. According to Crisanto, she responded only one time to Lopez's communications, asking her to stop. However, because Lopez failed to stop, Crisanto contacted the police on two or three occasions over the course of several months in 2016 and 2017, and filed at least one written police report in 2017 complaining about Lopez's conduct. Crisanto testified that Lopez's conduct caused her to feel "humiliated," "threatened," "insecure," and concerned for her safety. She further testified that because of the "horrendous" nature of Lopez's conduct, she found it necessary to seek psychiatric counseling.

         At the close of the hearing, the trial court issued a protective order against Lopez pursuant to Chapter 7A of the Code of Criminal Procedure, expressly finding that there were "reasonable grounds to believe that [Crisanto] is the victim of stalking." The order, which expires on October 22, 2019, prohibits Lopez from communicating with Crisanto in a "threatening or harassing manner," from coming within 200 yards of her business or residence, and from engaging in conduct that is "reasonably likely to harass, annoy, alarm, abuse, torment, or embarrass" Crisanto.

         DISCUSSION

         Lopez argues in two related issues that the evidence presented at the hearing was both legally and factually insufficient to support the trial court's finding that Crisanto was the victim of stalking. In support of her argument, Lopez contends that Section 42.072 of the Texas Penal Code, which defines the offense of stalking, required Crisanto to present evidence that Lopez's conduct caused her to be in fear of bodily injury or death, or in fear that an offense would be committed against her property. Lopez contends that Crisanto presented no evidence from which the trial court could have found that she had any such fear. However, as explained below, under the current version of the Penal Code, Crisanto was not required to present evidence that she had any such fears in order to support the trial court's finding that she was the victim of stalking; instead the trial court was entitled to find that Crisanto was a stalking victim for purposes of issuing a Chapter 7A protective order based solely on evidence that Lopez engaged in the type of harassing conduct described by Crisanto at the hearing.

         The Current Version of the Stalking Statute

         The Texas Code of Criminal Procedure gives a trial court the authority to issue a protective order "without regard to the relationship between the applicant and the alleged offender" if, after holding a hearing, the court determines "there are reasonable grounds" to believe the applicant is the victim of certain specified Penal Code offenses, including the offense of stalking. Tex.Code Crim.Proc.Ann. art. 7A.01(a)(1); 7A.03. In turn, stalking is defined in Section 42.072 of the Texas Penal Code. Prior to 2013, Section 42.072 of the Penal Code defined stalking as only including situations in which the perpetrator engaged in threatening conduct that placed the victim in fear of bodily injury or death, or in fear that an offense against the victim's property might take place. However, effective September of 2013, the Legislature amended the Code to expand the definition of stalking to also include situations in which the perpetrator engaged in conduct that constituted the offense of "harassment" under Section 42.07 of the Penal Code. [2] See Acts of May 24, 2013, 83rd Leg., ch. 1278 (H.B. 1606), § 2, Tex.Gen.Laws 3231; Shoemaker v. State, 493 S.W.3d 710, 716-17 (Tex.App--Houston [1st Dist] 2016, no pet.)(recognizing legislative changes to the stalking statute); see also Seals v. Wilbourn, ___ S.W.3d ___, No. 12-17-00208-CV, 2018 WL 1180742, at *2 (Tex.App.--Tyler, Mar. 7, 2018, pet. denied)(affirming trial court's finding that a protective order applicant was the victim of stalking based solely on the respondent's harassing conduct). Thus, Section 42.072 of the Code now reads, in relevant part, that: "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) causes the other person . . . to feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended; and (3) would cause a reasonable person to . . . feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended. Tex.Penal Code Ann. § 42.072.

         In turn, Section 42.07 of the Code provides, in relevant part, that: "A person commits [the] offense [of harassment] 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 . . . [and] (7) sends repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another." Tex.Penal Code Ann. § 42.07(a)(1)(7). The term "obscene" is defined in the harassment statute as a communication "containing a patently offensive description of or a solicitation to commit an ultimate sex act, including sexual intercourse, masturbation, cunnilingus, fellatio, or anilingus . . . ." Tex.Penal Code Ann. § 42.07(b)(3). The ...


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