Opinion
NO. 03-15-00270-CV
07-07-2016
Suzanna Eckchum a/k/a Susan Eckhert, Appellant v. The State of Texas for the Protection of Hal Ketchum, Appellee
FROM THE COUNTY COURT AT LAW NO. 2 OF COMAL COUNTY
NO. C2014-1690C, HONORABLE CHARLES A. STEPHENS II, JUDGE PRESIDINGMEMORANDUM OPINION
Suzanna Eckchum a/k/a Susan Eckhert appeals an amended stalking protective order imposed against her for the protection of Hal Ketchum, a well-known musician. Eckchum contends that there was insufficient evidence to support the court's order, that the stalking and protective-order statutes are unconstitutional as applied to her, and that the court erred in its discretionary rulings at the final protective-order hearing. We will affirm the trial court's order.
The record reflects that appellant has also used the names Suzanne Eckert and Suzannah Eckchum, but her birth name is Billy Suzanne Barnes. She changed her name to Eckchum, combining the beginning of her last name, Eckert, and adding "chum," which she acknowledged is the ending of Ketchum's last name.
BACKGROUND
The State filed an application for a protective order against Eckchum stating that Ketchum was a victim of her stalking and that a clear-and-present danger of stalking existed if the order was not granted. Ketchum provided an affidavit in support of the State's application, averring that he and his family had been victims of Eckchum's stalking for nearly fifteen years since she first obtained his autograph at a Colorado "meet-and-greet" event for his fans.
All parties recognized the application's misstatement that the order was sought under Chapter 85 of the Family Code (which authorizes issuance of such protective orders for family violence or in suits for divorce), and represented to the court their understanding that the State sought only a protective order for stalking. See Tex. Code Crim. Proc. art. 7A.03. At the start of the hearing, Eckchum's retained trial counsel clarified, "It's my understanding, sir, that this is not a family violence Protective Order that it's a Protective Order for a victim of stalking as authorized by Article 7(a) of the Texas Code of Criminal Procedure," and she acknowledged, "We are here. We've obviously received notice." The court responded that if there were no complaints about notice or due process they could proceed. After reviewing the State's proposed order, the court stated, "I don't see any problems, so I think we're ready to proceed forward. Anything else?" Counsel each said, "No, sir," and the hearing resumed.
Ketchum's affidavit summarized Eckchum's pattern of conduct, beginning with her moving to every city and state where he had moved (Nashville, Tennessee; and Austin, Wimberley, and Fischer, Texas) and ultimately relocating to live near his present home. Some of her most recent conduct during 2013-14 was alleged to have included following Ketchum's daughter, following his family to a hardware store, taking pictures outside of his home, and taking pictures of his family and grandchildren. Ketchum stated that Eckchum used different names, such as "Susan Eckhert" and "Suzannah Eckchum." He also stated that after a concert Eckchum approached him and his family and made a "shooting motion" with her hand while telling him that if he "messed with her [he] would be sorry." Based on these events, Ketchum averred that his life had been threatened, that Eckchum had refused to leave him alone for years, and that he feared for his safety and that of his family. Ketchum noted that he had reported "everything" to the Comal County Sheriff's Office and referenced an earlier case number with the Nashville Police Department.
The trial court signed a temporary protective order prohibiting Eckchum from committing stalking. The court then held a hearing at which it granted the State's request for a "lifetime" stalking protective order. See Tex. Code Crim. Proc. arts. 7A.03, 7A.07(a). The order directed Eckchum:
1. Not go to any venue where Ketchum was performing at least 3 hours before and after the performance, as well as during performances;See id. art. 7A.05(a). The court subsequently held a hearing on Eckchum's motion for new trial, which was denied. This appeal followed.
2. To stay 1,000 feet away from Ketchum, his family, and any member of his household, and certain locations, including their residence, work, and his daughter's school or future school facility as long as she attends it;
3. Not to take pictures of Ketchum, his family, or members of his household;
4. Not to communicate directly or indirectly with Ketchum or any member of his household except through an attorney or a person appointed by the court;
5. Not to engage in any conduct toward Ketchum, his family or a member of his household that was reasonably likely to harass, annoy, harm, abuse, torment, or embarrass them; and
6. Not to possess a firearm.
Eckchum's appointed appellate counsel explicitly agreed that this restriction was "a reasonable fix" to the court's original order, which had previously commanded Eckchum to stay 1,000 yards away from Ketchum, his family, and locations that included his daughter's school, but had not limited the restriction to the period in which she actually attended the school.
DISCUSSION
Sufficiency of evidence
In her first issue, Eckchum contends that there was legally and factually insufficient evidence to support the court's stalking protective order. When conducting a legal-sufficiency review, we consider the evidence in the light most favorable to the challenged finding and indulge every reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 822, 827 (Tex. 2005). To prevail, an appellant must show that no more than a scintilla of evidence supports a finding on which the opponent had the burden of proof. See Waste Mgmt. of Tex., Inc. v. Texas Disposal Sys. Landfill, Inc., 434 S.W.3d 142, 156-57 (Tex. 2014); City of Keller, 168 S.W.3d at 826. More than a scintilla of evidence exists to support a finding when the evidence enables reasonable and fair-minded people to differ in their conclusions. Gharda USA, Inc. v. Control Sols., Inc., 464 S.W.3d 338, 347 (Tex. 2015).
When conducting a factual-sufficiency review, we consider all the record evidence and set aside the trial court's order only if the evidence is so weak as to make the order clearly wrong and manifestly unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). We defer to the fact finder's implicit determinations of credibility and weight to be given to the evidence. See Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003).
Under either standard, we may not substitute our judgment for that of the trier of fact when the evidence falls within the zone of reasonable disagreement, and the trier of fact is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. See City of Keller, 168 S.W.3d at 816-17, 819-20, 822 (legal sufficiency); Golden Eagle Archery, Inc., 116 S.W.3d at 761 (factual sufficiency).
Elements of stalking offense
A trial court must grant a protective order if it determines that there are reasonable grounds to believe that the applicant is the victim of sexual assault or abuse, stalking, or trafficking. Tex. Code Crim. Proc. art. 7A.03. "Stalking" is defined in section 42.072 of the Penal Code to include conduct that threatens bodily injury or death, and conduct that causes harassment, annoyance, alarm, abuse, torment, embarrassment, or offense:
(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 [harassment], 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.
(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.Tex. Penal Code § 42.072. Eckchum's complaint to the court at the hearing on the motion for new trial was that—looking at Ketchum's affidavit alone—Ketchum had not alleged two threats that would fit the criminal offense of stalking.
On appeal, Eckchum raises new sufficiency challenges, addressed later in this opinion, based on other aspects of the stalking statute.
However, the trial court's consideration of the evidence was not limited to Ketchum's affidavit. It had the benefit of all the evidence presented to it, including extensive testimony from Ketchum and his wife about Eckchum's conduct and Eckchum's own testimony. Ketchum testified that Eckchum:
• had stood in his yard and gone through his mail when he lived in Nashville;
• approached his management on several occasions and showed up at his wife's place of business on several occasions and on every occasion was asked to leave;
• showed up at his daughter's school but did not have any children who attended it;
• followed his family off school property as they left;
• showed up at his children's school fundraisers and took pictures of them;
• followed his teenage daughter around town;
• followed him to the hardware store;
• followed him to the grocery store;
• followed his wife into the restroom at his concerts;
• photographed his children and grandchildren in the audience at his concerts;
• began using half of his last name as her name; andAccording to Ketchum, he told Eckchum in early 2014, "I don't want you anywhere near me anymore," and "Please leave us alone," but even after those requests, Eckchum followed Ketchum's daughter and took photographs of his grandchildren and his home. Ketchum testified that he wanted some type of permanent order from the court that would not require him to worry about Eckchum being anywhere near him, that he feared for his safety, and that he is "frightened for [his] life honestly."
• made a gun shape with her hand, pointed it at him, and said if he messed with her, he would be sorry.
The court also heard testimony from Mrs. Ketchum that Eckchum:
• "continually follows us, our entire family and follows Hal constantly";
• came onto their property, making them "scared for our home life";
• went "above and beyond" everyone's normal behavior by following, watching, and photographing everything that had to do with their family;
• followed them every time she saw them in town;
• attended all of Ketchum's shows and was "constantly ducking behind things" or hiding "behind poles" and then reappearing behind her, Ketchum, or his daughter;
• followed her and Ketchum's daughter from the restroom;
• stood outside a parked truck "surrounding" it while Ketchum's daughter was waiting inside the truck with locked doors;
• jumped out from behind cars in a parking lot, scaring Ketchum and his daughter;
• smiled "really creepily" at her, Ketchum, and Ketchum's daughter and said, "I didn't know you had a family"; and
• made a gun signal with her hand saying, "[Y]ou're going to be sorry about this," which frightened Mrs. Ketchum and caused Ketchum's daughter to have a panic attack.
The court further heard Eckchum testify that she went to Ketchum's Nashville home after locating it in a magazine listing the addresses of artists, that she sent "stuff"—including photos and a love letter—to Ketchum's management office, that she was accused by the "management people" of stalking, that she was stopped near Ketchum's home by police who talked to her about stalking and asked her to leave Ketchum alone, and that Ketchum's neighbor asked her not to come on his property because Ketchum lived nearby. She also testified that she came up with the change to her last name by combining the beginning of her last name, Eckert, and adding "chum," which she acknowledged is the ending of Ketchum's last name.
She pointed out that "chum" also means "friend," and that the "Eckchum" name she gave herself "means like a life force friend."
1. Eckchum's knowledge of her conduct
In Eckchum's view, the evidence in this record does not show that she knew her conduct would cause Ketchum to fear death or bodily injury, and she points out that she never harmed him physically. However, the requisite knowledge for the offense of stalking may be inferred when the defendant had been told by law enforcement officers or third parties to leave the victim alone, and an actual assault is unnecessary to prove that stalking occurred. See McGowan v. State, 375 S.W.3d 585, 591 (Tex. App.—Houston [14th Dist.] 2012, pet. ref'd) (concluding that defendant's decision to ignore police and stepbrother who advised defendant to leave victim alone revealed appellant's "knowledge regarding his conduct" and supported conviction for stalking); id. (noting that physical assault of victim is not element to be proven for stalking conviction under Penal Code section 42.072). Here, the court had evidence that Ketchum's management accused Eckchum of stalking, that police told Eckchum to leave Ketchum alone, that Ketchum's neighbor asked Eckchum not to come on his property because Ketchum lived nearby, and that Ketchum himself told Eckchum he did not want her near him anymore and to leave his family alone. Based on this evidence, the trial court could have inferred that Eckchum had the requisite knowledge for the offense of stalking. See id.
2. Eckchum's threats
Eckchum also contends that the evidence in this record did not show that she threatened Ketchum. She contends that the alleged warning of "mess with me, and you'll be sorry," is a conditional statement that was not a threat and did not cause Ketchum any fear. However, there was plainly evidence that the encounter affected Ketchum, who testified that when Eckchum stepped out of the bushes behind him and his family, he "accelerated" the return to their truck and asked Eckchum to leave them alone. Mrs. Ketchum testified that Eckchum then smiled "really creepily" and said she did not know Ketchum had a family. Ketchum could have ignored Eckchum if her conduct seemed harmless to him. Instead, he responded, "[S]tay clear of us. That's all I can tell you. I don't want you anywhere near me anymore. This has been going on 16 years. Please leave us alone." It would not have been unreasonable for the court to link this encounter to Ketchum's testimony that Eckchum had been threatening his life, that he fears for his safety, and that he is frightened for his life. Further Mrs. Ketchum, who witnessed the entire encounter, testified that it made her frightened for herself and Hal, and that Ketchum's daughter "had an absolute panic attack and ran screaming."
Notably, Eckchum's argument does not address the significance of allegedly making that statement while gesturing with her hand in the shape of a gun pointed at Ketchum.
Eckchum challenges the credibility of the Ketchums' testimony about this encounter, contending that Ketchum could not have feared Eckchum's alleged threat because he was pursuing her, and not the other way around. As support for this argument, Eckchum relies on the testimony of a witness who claimed to have seen part of this encounter and said Eckchum was calmly walking away from Ketchum. But that witness did not know anything about Eckchum's pattern of conduct toward Ketchum and his family leading up to this encounter—she testified that she "didn't know what was going on" and had no idea what instigated it. As to this evidence, we note that the trial court was the sole judge of the credibility of the witnesses and the weight to be given to their testimony. See City of Keller v. Wilson, 168 S.W.3d 802, 816-17, 819-20, 822 (Tex. 2005); Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003).
In addition to the evidence that Eckchum told Ketchum he would be sorry if he "messed" with her and gesturing with her hand in the shape of a gun pointed at him, evidence in the record reflects that Eckchum followed Ketchum and his family members, came onto his property making the Ketchums "scared for [their] home life," and was seen outside his home taking pictures despite being asked by police and by Ketchum to leave him alone. From the evidence that Eckchum continued her behavior, the trial court could have inferred that Eckchum knew or reasonably should have known that Ketchum would regard her conduct as threatening bodily injury or death. See McGowan, 375 S.W.3d at 591 (holding that defendant's decision to ignore warnings from stepbrother and police revealed his knowledge that stalking victim would regard defendant's conduct as threatening bodily injury or death); see also Blair v. State, No. 12-13-00179-CR, 2014 Tex. App. LEXIS 432, at *11-12 (Tex. App.—Tyler Jan. 15, 2014, no pet.) (mem. op., not designated for publication) (concluding that defendant's continued behavior despite warnings from victim, victim's friends, and police would have allowed fact finder to infer that defendant knew or reasonably believed victim would regard such conduct as threatening bodily injury or death). Based on this evidence, the trial court could have found that on more than one occasion, Eckchum engaged in conduct that caused Ketchum or his family to be placed in fear of bodily injury or death, and that Eckchum's conduct would have caused a reasonable person the same fear.
3. Eckchum's scheme or course of conduct
Eckchum next contends that there is no evidence that she pursued a scheme or course of conduct directed specifically at Ketchum or his family. She alleges that she is a "reporter" and volunteer "radio-show host" who was coincidentally present at locations where Ketchum was because they live in the same town and "work in the same industry."
However, several of Eckchum's encounters with Ketchum showed a pattern of behavior that had nothing to do with her alleged work in the same industry. When Nashville police arrived and stopped Eckchum a few houses away from Ketchum's home she told them that she worked at a Shoney's restaurant, not that she was there on any legitimate professional assignment. Thus in Nashville, there was no work-related reason for Eckchum to go to Ketchum's home (and go through his mail), to his management office, or to his wife's place of business, and on every occasion Eckchum was asked to leave. Additionally, the court could have found on this record that there was no work-related reason for Eckchum to combine her name with Ketchum's, to show up outside his home in Texas taking pictures, to go to his daughter's school (where Eckchum did not have any children enrolled), to follow Ketchum's family as they left school property, to follow and photograph his children at fundraisers held at school (where Eckchum did not have any children enrolled), to follow his daughter in town, or to stand outside "surrounding" a parked truck where Ketchum's daughter was waiting inside with locked doors. Accordingly, the court could have found that Eckchum's explanation for her behavior was inconsistent with her course of conduct toward Ketchum and his family. Although Eckchum denied committing any stalking conduct and cites a case denying a stalking protective order for "chance encounters," the trial court could have found that these were not chance encounters and that her testimony was not credible. The court could have also found that the Ketchums were credible and credited their testimony in favor of the necessity of the protective order.
Given the totality of the evidence in this record, we conclude that there was more than a scintilla of evidence supporting the court's stalking protective order and its implicit findings that: (1) on more than one occasion and pursuant to the same course of conduct directed at Ketchum, (2) Eckchum knowingly engaged in conduct that she knew or should have known Ketchum would perceive as threatening bodily injury or death to Ketchum or his family; (3) causing Ketchum or his family to be placed in fear of bodily injury or death; and (4) that would have caused a reasonable person the same fear. See Tex. Penal Code § 42.072. We further conclude that the evidence supporting the trial court's order was not so weak or contrary to the overwhelming weight of all the evidence that the order should be set aside. Accordingly, the court could have determined that there were reasonable grounds to believe that Ketchum was the victim of stalking by Eckchum. See Tex. Code Crim. Proc. art. 7A.03. Eckchum's first issue is overruled.
As-applied constitutional challenge to statutes waived
In her next issue, Eckchum contends that the stalking and protective-order statutes are unconstitutional as applied to her. As a prerequisite to presenting a complaint for appellate review, the record must show that "the complaint was made to the trial court by a timely request, objection, or motion." Tex. R. App. P. 33.1(a)(1); Mansions in the Forest, L.P. v. Montgomery Cty., 365 S.W.3d 314, 317 (Tex. 2012). This rule also applies to constitutional claims. See In re L.M.I., 119 S.W.3d 707, 711 (Tex. 2003) (noting that both Texas Supreme Court and United States Supreme Court have held that even constitutional claims must be raised before trial court to preserve error); Curry v. State, 910 S.W.2d 490, 496 (Tex. Crim. App. 1995) (concluding that appellant waived as-applied challenge to statute's constitutionality by failing to make specific and timely objection below).
Here, Eckchum did not present to the trial court an "as applied" constitutional challenge to the stalking and protective order statutes. Rather she stated that the statutes may be unconstitutional "considering the notice that Ms. Eckchum gets or anyone else gets." Her entire argument to the court about the constitutionality of the statutes was this:
Your Honor, the last point I would like to make before we go is that the statutes that support this Protective Order, both the new statute Section 7(a) that's what the Protective Order was entered under as well as the stalking and harassment statutes have all been challenged as constitutional. Let me correct myself, the stalking and harassment statutes have been challenged as unconstitutional. They very well may be unconstitutional. The new Protective Order statutes that this case was brought under has been on file for only a couple years and it may be unconstitutional as well considering the amount of notice that Ms. Eckchum gets or anyone else gets. And it's the standard of proof for an order that affects her for the rest of her lifetime there's some due process issues there and I just wanted to put that on the record.This does not adequately raise an "as-applied" challenge.
Further, Eckchum's motion for new trial contained nothing alerting the trial court to any as-applied constitutional challenge. See Tex. R. Civ. P. 321-22 (requiring objections in motions for new trial to be made in manner that can be clearly identified and understood by court and prohibiting court's consideration of grounds of objections couched in general terms). Eckchum's motion stated only: "I, Suzanna Eckchum wish to appeal the STALKING PROTECTIVE ORDER to the THIRD COURT OF APPEALS and ask for a new trial based on the facts and the law does not support the order as of this date 2/11/15 [sic]."
Finally, we note that the court expressed reservation about Eckchum's failure to follow the procedure for notifying the Attorney General to the extent that she sought to raise a constitutional challenge to a Texas statute:
Well, I understand it, No. 1, it wasn't raised at the original hearing, this issue of constitutionality. When you do raise an issue of constitutionality of a statute you have to give the Attorney General notice before you can proceed forward. To my knowledge that wasn't done, so I don't think I'm in a position to rule on that at all.See Tex. Gov't Code § 402.010(a), (a-1) (setting forth procedure for notifying attorney general of any pleading challenging constitutionality of Texas statute that is filed by party to litigation, if attorney general is not party to or involved in such litigation as counsel, and providing copy of that pleading to attorney general). While not determinative on the issue of waiver, this failure further supports the conclusion that Eckchum did not raise a constitutional challenge to any Texas statute below. Eckchum does not assert that her as-applied constitutional challenge may be raised for the first time on appeal. We conclude that she has waived this issue.
Remaining issues waived
Eckchum's remaining issues contend—also for the first time on appeal—that the court erred by granting a stalking protective order based on "false testimony," by granting relief that did not conform to the pleadings under Texas Rule of Civil Procedure 301, and by excluding some testimony about Ketchum's marital history. Because Eckchum failed to present to the trial court any of these complaints, she has waived any error as to them. See Tex. R. App. P. 33.1(a)(1); Mansions in the Forest, L.P., 365 S.W.3d at 317.
As we have noted, Eckchum's retained counsel explicitly acknowledged that the State was seeking a stalking protective order under "Article 7(a) of the Code of Criminal Procedure" and did not object when the court stated that if there were no complaints about notice or due process they could proceed with the hearing. See Hartford Fire Ins. Co. v. C. Springs 300, Ltd., 287 S.W.3d 771, 779-80 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (noting existence of exceptions to Rule 301 and stating that party who allows issue to be tried by consent and fails to raise lack of pleading before submission of the case cannot raise pleading deficiency for first time on appeal). --------
CONCLUSION
We affirm the trial court's order.
/s/_________
Jeff Rose, Chief Justice Before Chief Justice Rose, Justices Pemberton and Bourland Affirmed Filed: July 7, 2016