Opinion
01-21-00297-CV
08-23-2022
STEPHEN MCASHAN JONES, Appellant v. KRISTA FRAZIER, Appellee
On Appeal from the 280th District Court Harris County, Texas Trial Court Case No. 2021-07145
Panel consists of Justices Kelly, Goodman, and Guerra.
MEMORANDUM OPINION
Peter Kelly, Justice
This is an appeal from a protective order granted by the trial court against appellant Stephen McAshan Jones ("Stephen") involving his child, Sam, and the mother of the child, appellee Krista Frazier ("Krista"). In four issues Stephen argues that the evidence is legally and factually insufficient to support the order, that the trial court erred in entering an order lasting more than two years, that the trial court terminated his parental rights to his child, and that the trial court erred in awarding attorney's fees. We affirm.
Background
Stephen and Krista are the parents of five-year-old Sam. Stephen and Krista never married, and the record does not reflect that Sam is the subject of a suit affecting the parent child relationship. On February 4, 2021, Krista applied for a protective order in Harris County pursuant to Title IV of the Texas Family Code and Texas Code of Criminal Procedure 7B. Krista alleged that Stephen had engaged in family violence by committing acts that were intended "to result in physical harm, bodily injury, assault, or sexual assault or were threats that reasonably placed [Krista and Sam] in fear of imminent physical harm, bodily injury, assault, or sexual assault." The Harris County District Clerk assigned Krista's application for a protective order to the 280th District Court of Harris County (the "280th District Court").
For purposes of this opinion, we refer to the child by a fictitious name. See Tex. Fam. Code § 109.002(d); Tex.R.App.P. 9.8.
The 280th District Court issued a temporary ex parte protective order on February 8, 2021. On April 30, 2021, Stephen answered the application for the protective order asserting a general denial. On May 3, 2021, the court held a hearing on Krista's application for a protective order on May 3, 2021, at which Krista, Stephen, and Stephen's friend testified. The parties submitted various exhibits and Krista's attorney also testified about attorney's fees.
A. May 3, 2021 hearing testimony
1. Krista's testimony
Krista testified that she was in an "on and off relationship with Stephen from the end of 2014 through 2016. They had one child together, Sam, who was five years old at the time of the hearing and lived with Krista. Krista described her relationship with Stephen as 'very rocky, very volatile." She also testified that since breaking up with Stephen four or five years ago, Stephen would disappear for several months, then come back aggressive, angry, and violent. She testified that physical violence occurred frequently and that Stephen had an issue with drugs.
Krista testified to several instances of physical violence and threats by Stephen. Krista testified that on the day before Thanksgiving 2015, Stephen grabbed her around the neck in a "horse collar" and dragged her down the stairs by her hair and neck. At the time, she was pregnant with Sam and due to give birth in about a month. Stephen dragged Krista down a staircase, and she sustained injuries to her knees and back. The incident occurred after Krista told Stephen that she did not want to attend Zoo Lights because she was preparing Thanksgiving dinner for twelve people. Stephen told Krista that she was selfish and lazy and started hitting his fist on things. Stephen dragged her down the stairs and threw her out of the house. She did not have her belongings and went to her mother's house. Krista and Stephen stayed apart for a few weeks until Sam was born. The incident occurred in front of Stephen's minor daughter.
Krista testified that in early 2016, Stephen was working temporarily in Phoenix, Arizona. Krista flew with newborn Sam to visit Stephen. When she arrived with Sam, she was exhausted. Stephen was angry and believed Krista was sleeping too much during the day and night. On the third day of the visit, Stephen became very angry that Sam was crying. He picked up Sam and shook him violently against a lamp, exclaiming that Sam could be near its bright light if he wanted to be awake. Krista immediately left the room with the child, packed up her things as Stephen screamed at her, and went to the airport to fly back to Houston. Stephen was mad that she did so and threatened to take Sam from her. The court heard a recording of a voicemail that Stephen left for Krista, not knowing she had left Arizona, where he threatened to take Sam from her multiple times.
In April 2016, Stephen became irate when he learned that Krista had sold tickets to the Final Four basketball game. At the time, they were not living together. Krista originally obtained the tickets for them to go to the Final Four. Given the incident in Phoenix, Krista sold them. Krista went to Stephen's house to retrieve some belongings, and when she told him she had sold the tickets, he began screaming. Krista stated that it was terrifying. Stephen pulled her down a spiral staircase. Krista fell and injured her tailbone, knees, and wrist. Infant Sam was waiting in the car. The trial court viewed a photograph of the injuries to Krista's leg. Krista did not call the police because Stephen threatened to take Sam from her. Instead, she reached out to Stephen's ex-wife, who helped her financially.
Krista testified that Stephen regularly threatened her. On May 5, 2016, Stephen left a voicemail message for Krista where he stated that she was going to "get come up on." She interpreted this as a threat to her life. He told her that she needed to kill herself, that she was worthless, and that she needed to die. He also threatened to drag Krista's mother out of her apartment by her hair.
In March 2017, Stephen threw a loveseat at Krista, broke her phone and her mother's phone to prevent them from calling the police, and punched Krista in the face. Krista testified that her mother was living at Krista's house because she was terminally ill with lung cancer. Stephen came over to help with furniture. He became angry with Krista and called her names. She asked him to leave, and he became extremely upset and started throwing furniture. He picked up a loveseat and threw it across the room. He then punched Krista in the face and broke her phone to prevent her from calling the police. At the time, Sam was in a playpen in the same room as Krista's mother. Krista's mother, who was connected to necessary medical equipment, attempted to get up from her hospital bed to get Sam away from the violence. In the process, she fell and severely injured her face. Stephen broke Krista's mother's phone to prevent her from calling the police. Photographs of Krista's mother's injuries and Krista's injuries were admitted into evidence. After Stephen left Krista's condominium, he texted her that "if I'm going to jail then taking you down." Krista responded that she was not scared of Stephen, and he texted again saying, "You should be because I would have you killed."
Krista testified that she was scared to press charges related to the loveseat incident. She did not want to make the situation worse. She was also close with Stephen's parents and did not want to hurt them. Stephen threatened Krista that he knew "the system" well enough and that he would take her son from her if she ever reported the incidents.
Krista also testified that Stephen was aggressive toward her dog. In 2017, Stephen kicked Krista's elderly dog in the face, causing damage to the dog's eye. A photograph of the dog's injury was admitted into evidence.
In November 2018, Stephen came to Krista's house wanting to see Sam. When she asked Stephen to leave, Stephen shoved Krista's head into the wall and held it there. She testified that he did so very forcefully and that it hurt badly. A picture of injuries to her face after the incident was admitted into evidence.
Krista also testified that in fall 2018, Stephen came to her house and told her that he had been awake for five days using drugs. While at her house, Stephen stared at Krista and told her that he would "strangle the last life drop out of [her] and bury [her] body in the woods."
Krista testified that in 2019 and 2020, Stephen verbally assaulted her and threatened her constantly. In July 2020, he became angry when she would not sign a document that stated he was providing child support for Sam, when he was not doing so. Stephen also called child protective services and reported that Krista was abusing Sam. Though the investigation cleared Krista, Krista testified that Stephen reported the investigation to a private school where Krista sought to enroll Sam. The school would have helped him with his autism spectrum disorder. Suddenly, the school stated that they would not accept Sam.
In January 2021, Krista noticed a black Dodge Charger parked outside of her house for long periods of time. The car followed her when she left the house. Later in January, a man that was a friend of Stephen's crashed his black Dodge Charger into Krista's vehicle in an intersection. The manner appeared to be intentional. She testified that she believed Stephen initiated the involvement of the Dodge Charger.
2. Stephen's friend's testimony
A friend of Stephen's testified that he had known Stephen for many years and that he knew Krista as the mother of Stephen's child. The friend also took care of Krista's mother for six months during her cancer diagnosis. The friend did not witness any physical altercation between Krista's mother and Stephen. On cross- examination, the friend admitted that between 2014 and 2017 he had been convicted of theft of services, forgery, lying to the police about identification, and possession of a controlled substance. He also testified that he was given the job to care for Krista's mother because he told Krista's mother that he also had cancer. When asked if he lied about having cancer, he stated that at the time he thought he had cancer, but later he learned he did not.
3. Stephen's testimony
Stephen testified that he had tested negative for drugs in November 2020, January 2021, and April 2021. He testified that he takes regular drug tests because they are required if he wants to modify visitation in a case involving his daughter. He testified that his visitation in that case was modified to supervised visits in 2016 when he tested positive for drugs. He testified that he had not used drugs since then and that he attended an outpatient rehabilitation program in November 2016. He stated that he attended Alcoholics Anonymous but quit after realizing the program was not for him.
Stephen denied all of the allegations of abuse, including against Krista's dog. He also testified that he had never physically hurt Krista or her mother. He stated that his conversations with Krista were civil and not hostile. He testified that Krista's allegations were inconsistent with the communication that he had with her in the last year. Stephen testified that he had not seen Sam in a year, having last seen Sam during the end of 2019.
4. Krista's attorney
Krista's attorney testified that he is board certified in family law with a billable hourly rate of $325. He testified that he had completed $11,377.87 in legal work. He believed this was more than typical for a protective order, but that this case was atypical. It involved incidents going back to 2015 and 600 pages of text messages and documents. Therefore, he believed his fees were reasonable and necessary.
B. Protective order
The court granted the requested protective order. The court found that Stephen had committed family violence and that it was likely to occur in the future. The court further found reasonable grounds existed to believe that Krista was a victim of stalking under the Texas Penal Code. The court granted the protective order as to Krista and Sam. The court ordered that the protective order last for Krista's lifetime and until Sam turned 18. The court also stated that Stephen could seek to modify or vacate the order as to Sam as many times as he wanted to after one year. The court ordered that Stephen complete various classes, sell his handgun immediately, and pay attorney's fees to Krista's attorney. Stephen appealed.
Sufficiency of the Evidence
In his first issue, Stephen argues that the evidence is legally and factually insufficient to support issuance of the protective order under either the Family Code or the Code of Criminal Procedure. Specifically, Stephen argues that there is no evidence that he took any action that was intended to imminently harm Krista or that could have placed her in fear of imminent harm. He also argues that there is insufficient evidence to support an alternative family violence finding in the protective order related to criminal convictions for crimes against a child. We hold that there is sufficient evidence to support the trial court's issuance of the protective order under both the Family Code and the Code of Criminal Procedure. We modify the order to delete the paragraph related to conviction for a crime against the child.
A. Standard of review
"When the trial court acts as a factfinder, we review its findings under the legal and factual sufficiency standards." Boyd v. Palmore, 425 S.W.3d 425, 429 (Tex. App.-Houston [1st Dist.] 2011, no pet.) (citing In re Doe, 19 S.W.3d 249, 253 (Tex. 2000)). When a party who does not have the burden of proof at trial challenges the legal sufficiency of the evidence, we consider the evidence in the light most favorable to the prevailing party, indulging every reasonable inference in that party's favor and disregarding contrary evidence unless a reasonable factfinder could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); City of Hous. v. Hildebrandt, 265 S.W.3d 22, 27 (Tex. App.-Houston [1st Dist.] 2008, pet. denied) (citing Assoc. Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 285-86 (Tex. 1998)). If more than a scintilla of evidence supports the challenged finding, it is legally sufficient, and we will overrule the issue. Haggar Clothing Co. v. Hernandez, 164 S.W.3d 386, 388 (Tex. 2005); Hildebrandt, 265 S.W.3d at 27. There is more than a scintilla of evidence if the evidence rises to a level that would enable reasonable and fair-minded people to reach differing conclusions. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004).
In reviewing a factual sufficiency challenge, we examine the entire record. We consider and weigh all the evidence, both in support of and contrary to the challenged finding. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); Boyd, 425 S.W.3d at 429. After considering and weighing all the evidence, we set aside the verdict only if the evidence is so weak, or the finding is so against the great weight and preponderance of the evidence, that it is clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
The factfinder, as the sole judge of the credibility of the witnesses and the weight to be given their testimony, has a right to resolve any conflicts in the evidence and to choose which testimony to believe. City of Keller, 168 S.W.3d at 819; see also Boyd, 425 S.W.3d at 431. We cannot substitute our opinion for that of the trier of fact only because we might reach a different conclusion. Boyd, 425 S.W.3d at 429.
B. Analysis
Protective orders are governed by provisions in both the Family Code and the Code of Criminal Procedure. Kloecker v. Lingard, No. 01-19-00533-CV, 2021 WL 2096663, at *4-5 (Tex. App.-Houston [1st Dist] May 25, 2021, pet. denied) (mem. op.); Shoemaker v. State ex rel. C.L., 493 S.W.3d 710, 715 (Tex. App.- Houston [1st Dist.] 2016, no pet.). Section 82.002 of the Family Code allows a person to file an application for a protective order to protect against family violence. See Tex. Fam. Code § 82.002 (setting out who may file application for protective order and under which circumstances); id. § 71.004 (defining "family violence"). Code of Criminal Procedure Chapter 7B allows a person who is a victim of stalking to file an application for a protective order. See Tex. Code Crim. Proc. art. 7B.001(a)(1) (referring to Tex. Penal Code § 42.072 (Stalking)).
In 2019, the Texas Legislature enacted a "nonsubstantive revision of the Texas statutes in an effort to make the statutes more accessible, understandable, and usable without altering the sense, meaning, or effect of the law." House Comm. on Judiciary & Civ. Juris., Bill Analysis, Tex. H.B. 4173, 86th Leg., R.S. (2019). As part of this recodification, the Legislature established Chapter 7B in the Code of Criminal Procedure, governing protective orders. See id; Act of May 24, 2019, 86th Leg., R.S., ch. 469, § 1.02, 2019 Tex. Gen. Laws 1066-70 (current version at Tex. Code Crim. Proc. Chapter 7B). Several provisions of chapter 7B were amended in 2021, but none of those amendments are involved in the issues raised in this appeal. In this opinion, all references to "Chapter 7B" refer only to the statute as it existed when Krista applied for and obtained the protective order, which occurred before the 2021 amendments took effect.
In a protective order, the trial court may prohibit a person found to have committed family violence from taking certain actions including communicating directly or indirectly with a person protected by the order; going to or near the residence, place of employment, or school of a person protected by the order; engaging in conduct that is reasonably likely to harass, annoy, alarm, abuse, torment, or embarrass the person protected by the order; and possessing a firearm. Tex. Fam. Code § 85.022(b); see Tex. Code Crim. Proc. art. 7B.005(a)(2) (allowing trial court to prohibit offender from engaging in most actions described in Family Code section 85.022(b), including possessing firearm).
Krista alleged in her application for a protective order that Stephen had engaged in conduct that constituted family violence under the Family Code. She also alleged that he had engaged in conduct that constituted stalking under the Penal Code, justifying a protective order under Chapter 7B. The evidence was sufficient for the trial court to find that Stephen had committed family violence against Krista and Sam, that family violence was likely to occur in the future, and that there was probable cause to believe that Stephen had committed acts constituting stalking under the Texas Penal Code. Therefore, there was sufficient evidence to support the issuance of the protective order under both the Family Code and the Code of Criminal Procedure.
1. Sufficiency of the evidence under the Family Code
The trial court made two findings related to family violence. First, the trial court found that family violence had occurred and was likely to occur in the future and that Stephen committed family violence because he has continually threatened Krista. Second, the trial court found that family violence had occurred and was likely to happen in the future "based on the fact that [Stephen] was convicted of or placed on deferred adjudication community supervision for an offense against the child for whom the suit was filed for an offense under title 5 of the Texas Penal Code with an affirmative finding that the offense involved family violence under article 42.013 of the Texas Code of Criminal Procedure, Respondent's parental rights with respect to the child have been terminated, and respondent is seeking or attempting to seek contact with the child." Stephen argues that as to the first finding, there was insufficient evidence to prove he threatened Krista or placed her in fear of imminent physical harm. As to the second finding, Stephen argues that there is no evidence in the record to support the finding. We hold that there is sufficient evidence to support the trial court's family violence finding related to Stephen's continual threats against Krista. We hold that there is insufficient evidence to support the trial court's second finding related to criminal convictions and termination of parental rights. We modify the order to strike this language from the protective order.
The Texas Family Code provides that a court shall enter a protective order if it finds that family violence (1) has occurred, and (2) is likely to occur in the future. Tex. Fam. Code §§ 81.001, 85.001. "Family violence" is defined, in pertinent part, as:
[A]n act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself.Id. § 71.004(1). "The purpose of the protective order statute is not to remedy past wrongs or punish prior criminal acts; rather, it seeks to protect the applicant and prevent future violence." Roper v. Jolliffe, 493 S.W.3d 624, 634-35 (Tex. App.- Dallas 2015, pet. denied).
Aside from acts intended to result in physical harm, threats that reasonably place the victim in fear of imminent harm also constitute family violence. See, e.g., Boyd, 425 S.W.3d at 430 (concluding that Boyd committed act of family violence when he blocked Palmore's car with his body and jumped on hood of car); Clements v. Haskovec, 251 S.W.3d 79, 85 (Tex. App.-Corpus Christi 2008, no pet.) (concluding that Clements committed act of family violence by raising his fist and making other threats though he never struck family member). In cases involving protective orders against family violence, evidence that a person has engaged in abusive conduct in the past permits an inference that the person will continue this behavior in the future. See Teel v. Shifflett, 309 S.W.3d 597, 604 (Tex. App.-Houston [14th Dist.] 2010, pet. denied) ("The trial court reasonably could have concluded that future violence is likely to occur based on the testimony showing a pattern of violent behavior."); In re Epperson, 213 S.W.3d 541, 544 (Tex. App.-Texarkana 2007, no pet.) (concluding past and continuing pattern of behavior showed applicant was reasonable in fearing respondent would commit acts of "family violence" in future).
The court heard evidence of numerous situations that amounted to family violence. The Family Code's definition of family violence includes an act by one member of a family against another member of the family that is intended to result in physical harm or that reasonably places the member in fear of imminent physical harm or bodily injury. See Tex. Fam. Code § 71.004(1). The court heard evidence that included: (1) Stephen pulling pregnant Krista down a stairwell by her hair; (2) Stephen shaking baby Sam because he was angry that Sam was crying; (3) Stephen dragging Krista down a flight of stairs because she had sold Final Four tickets; (4) Stephen throwing a love seat across the room, punching Krista in the face, breaking her phone to prevent her from calling the police, and breaking her mother's phone to prevent the same; (5) Stephen kicking Krista's dog in the face; and (6) Stephen shoving Krista's face into the wall.
The trial court heard evidence of Stephen's verbal threats against Krista. See, e.g., Clements, 251 S.W.3d at 85 (concluding that threats that reasonably place victim in fear of imminent harm constitute family violence). The trial court heard a recording of Stephen threatening Krista and threatening to take Sam from her after she left Arizona. The court also heard a May 2016 voicemail where he stated that she was going to get come up on, which she interpreted as a threat on her life. Krista testified that Stephen regularly told her to kill herself and that she needed to die. He also threatened to drag Krista's mother out of her apartment by her hair. After the incident involving the love seat where Krista's mother was also injured, Stephen texted Krista and told her that if he was going to jail, then he would "take [Krista] down." He also told her that she should be afraid of him because he could have killed her. In Fall 2018, Stephen came to Krista's house after staying up for five days using drugs. Krista testified that he told her that he would like to "strangle the last life drop out of [her] and bury [her] body in the woods."
Finally, Krista testified that, in early January 2021, a man that was a friend of Stephen's crashed his black Dodge Charger into her vehicle. She believed the collision was intentional. Later that month, a black Dodge Charger parked outside of her house for hours and followed her when she left. Krista testified that she believed both incidents were initiated by Stephen.
Stephen argues that there was no proof of a threat that reasonably placed Krista in fear of imminent harm. He argues that Krista's allegation that the last physical assault occurred in 2018 or 2019 shows that there was no immediate threat. The occurrence of alleged assaults in prior years does not render the evidence legally or factually insufficient. See Caballero v. Caballero, No. 14-16-00513-CV, 2017 WL 6374724, at *4 (Tex. App.-Houston [14th Dist.] Dec. 14, 2017, no pet.) (mem. op.) (stating there is no statutory time constraint on the acts of family violence that a trial court can consider when presented with an application for protective order). The trial court also heard Krista testify that she believed Stephen was involved in the initiation of an intentional car collision involving her car, and that he continually threatened her. To the extent that Stephen argues that the evidence was insufficient because he testified that recent communication with Krista had been cordial, the trial court is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. Boyd, 425 S.W.3d at 431. The trial judge heard both witnesses testify during the hearing and was free to believe Krista's testimony and disbelieve Stephen's. See id. (holding trial court was free to place greater weight on applicant's testimony when making family violence finding).
Additionally, Stephen argues that there the evidence is legally and factually insufficient to support the trial court's finding that (1) he had been convicted of a crime against the child with an affirmative finding of family violence; that (2) his parental rights with respect to the child had been terminated, and that (3) he attempted to seek contact with the child. We agree. We modify the order and delete this paragraph. See Tex. R. App. P. 43.3.
Even without the second family violence holding, the trial court could have reasonably found that family violence had been committed. See Tex. Fam. Code § 71.0041(1) (defining "family violence" to include threats "that reasonably place[] the [family] member in fear of imminent physical harm, bodily injury, assault, or sexual assault"). Similarly, we conclude that there was sufficient evidence to support the trial court's finding that Stephen would likely commit family violence in the future. See Teel, 309 S.W.3d at 604 ("The trial court reasonably could have concluded that future violence is likely to occur based on the testimony showing a pattern of violent behavior."); Epperson, 213 S.W.3d at 543-44 (concluding past and continuing pattern of behavior showed applicant was reasonable in fearing respondent would commit acts of "family violence" in future). There was sufficient evidence to support the issuance of a protective order under the Family Code.
2. Sufficiency of the evidence under the Code of Criminal Procedure
The trial court also heard sufficient evidence to mandate the issuance of a protective order under Chapter 7B of the Texas Code of Criminal Procedure.
For protective orders sought under Chapter 7B of the Code of Criminal Procedure, the trial court shall issue a protective order if it finds "reasonable grounds to believe that the applicant is the victim of sexual assault or abuse, stalking, or trafficking." Tex. Code Crim. Proc. art. 7B.003(b).
A person commits the offense of stalking if he, 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 [Penal Code] 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.Tex. Penal Code. § 42.072(a); see id. § 42.07(a) (setting out elements of offense of harassment); see Shoemaker, 493 S.W.3d at 716.
In addition to the instances of physical violence detailed supra, the court heard testimony of numerous examples of behavior that constitutes stalking under section 47.072 of the Penal Code. See Tex. Penal Code § 47.072. Krista testified that Stephen continually threatened her for many years. She stated that he threatened to take Sam from her, told her that she was worthless and needed to die, and told her to kill herself. Stephen threatened to drag Krista's mother by her hair from Krista's house. Stephen threatened Krista about calling the police after he assaulted her by stating that he would take her down. He told her that she should be afraid of him because he had considered killing her.
On other occasions, he threatened to strangle the life out of Krista's body and bury her in the woods. Krista testified that Stephen called Child Protective Services and filed a report against her related to her care of Sam. Krista also testified that a Black Dodge Charger had been following her and that it crashed into her, seemingly intentionally. Stephen had previously told Krista that he had thought about killing an ex-girlfriend by making it look like an accident. The court could have inferred that Stephen was involved in the Dodge Charger's behavior. City of Keller, 168 S.W.3d at 827.
In his reply brief, Stephen argues that the trial court could not have entered a protective order under Chapter 7B because the underlying stalking statute, section 42.072(a) of the Penal Code, has been held by the Dallas Court of Appeals to be unconstitutionally vague. See Griswold v. State, 637 S.W.3d 888, 890, (Tex. App.-Dallas Dec. 21, 2021, no pet.) (op. on reh'g) (stating harassment statute incorporated by reference into stalking statute is unconstitutionally vague related to electronic-communications and noting split of authority on the issue). Our court has not opined on the constitutionality of the stalking statute to the extent it incorporates the harassment statute. See Tex. Penal Code §§ 42.072(a); 42.07 (a)(7).
We need not opine on the constitutionality of the harassment portion of the stalking statute. Even if the harassment portion of the stalking statute was ruled unconstitutional, the rest of the stalking statute would remain valid. See Tex. Gov't Code § 311.032(c) (regarding severability of statutes). A reasonable factfinder could have found that more than a scintilla of evidence established that Stephen "on more than one occasion and pursuant to the same scheme or course of conduct . . . knowingly engaged in conduct" that he knew or reasonably should have known Krista would regard as threatening bodily injury for her or a member of her family or that placed her in fear of bodily injury. See Tex. Penal Code § 42.072(a). Even without considering the references to harassment in the stalking statute, there was sufficient evidence for the trial court to conclude that Stephen had engaged in other forms of stalking. From this record, we conclude that the trial court had reasonable grounds to believe Krista was a victim of that stalking, which supported compulsory issuance of the protective order under Chapter 7B. See Tex. Code Crim. Proc. art. 7B.003(a), (b).
Duration of the Protective Order
In his second issue, Stephen argues that the trial court erred in issuing a protective order that was valid for more than two years. We disagree.
In the written protective order, the trial court found that Stephen and Krista had previously been involved in a dating relationship, that family violence had occurred, that family violence was likely to occur again in the future, and that Stephen had committed family violence. The trial court also found that there were reasonable grounds to believe that Stephen had engaged in conduct that constituted stalking under Penal Code 42.072 and that the conduct was likely to occur again in the future. The trial court issued its protective order pursuant to both Family Code Chapter 85 and Code of Criminal Procedure Chapter 7B.
For protective orders issued under the Code of Criminal Procedure, 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." Tex. Code Crim. Proc. art. 7B.007(a). The trial court thus had statutory authority to make the protective order issued in this case effective for Krista's lifetime, or any shorter period of time. We conclude that the trial court did not abuse its discretion in setting the duration of the protective order.
We overrule Stephen's second issue.
Limitations on Possession of and Access to Sam
In his third issue, Stephen asserts that the protective order is contradictory because the trial court verbally stated that it was not issuing a custody or possession order but then signed an order that effectively terminated Stephen's rights to access and possession of Sam. We hold that the terms of the protective order do not terminate Stephen's parental rights and are not contradictory.
Stephen argues that the facts are similar to the facts in Lewis v. Yancy, but that case is distinguishable. Lewis v. Yancy, No. 01-19-00348-CV, 2020 WL 7251448, at *8 (Tex. App.-Houston [1st Dist] Dec. 10, 2020, no pet.) (mem. op.). In Lewis, the court entered a protective order that contained a provision that prevented the respondent from being within 400 feet of the child while simultaneously allowing the respondent to pick up and drop off the child in a public location. Id. Here, the protective order bars Stephen from coming within 400 feet of Sam. It makes no provision for Stephen to pick up or drop off Sam. The order also specifically states that Stephen can pick up or drop off Sam from school if a court of proper jurisdiction found that Sam's safety and well-being would not be endangered. While the order extends until Sam turns 18 years old, the court instructed Stephen that he could seek to modify the order "as many times after the first year as he wants."
We overrule Stephen's third issue.
Attorney's Fees
In his final issue, Stephen argues that because the protective order was not supported by legally and factually sufficient evidence, the trial court abused its discretion in awarding attorney's fees to Krista's counsel. The trial court has discretion in awarding reasonable attorney's fees to an applicant who successfully obtains a protective order against a party who is found to have committed family violence. Tex. Fam. Code § 81.005(a). The trial court found that Stephen committed family violence, issued the protective order, and awarded Krista's counsel $11,377.87 in attorney's fees. We have held that the evidence was sufficient to support the issuance of the protective order. Therefore, the trial court did not abuse its discretion in awarding attorney's fees to Krista's counsel.
We overrule Stephen's fourth issue.
Conclusion
We affirm the judgment of the trial court as modified.