Suzanna Eckchum A/K/A Susan Eckhert v. State

ACCEPTED
03-15-00270-CV
8023297
THIRD COURT OF APPEALS
AUSTIN, TEXAS
11/30/2015 11:51:37 PM
JEFFREY D. KYLE
CLERK
NO. 03-15-00270-CV
______________________________________________________________
FILED IN
IN THE THIRD COURT OF APPEALS 3rd COURT OF APPEALS
AUSTIN, TEXAS
AUSTIN, TEXAS
11/30/2015 11:51:37 PM
______________________________________________________________
JEFFREY D. KYLE
Clerk
SUZANNA ECKCHUM

Appellant,

v.
THE STATE OF TEXAS FOR THE PROTECTION OF HAL KETCHUM

Appellee.

______________________________________________________________

On Appeal from the County Court at Law #2,
Comal County, Texas, Cause No. C-2014-1690C,
the Honorable Charles A. Stephens, Judge Presiding
______________________________________________________________

REPLY BRIEF OF APPELLANT
______________________________________________________________

Mysha Lubke
BAKER BOTTS L.L.P.
State Bar No. 24083423
98 San Jacinto Blvd., Suite 1500
Austin, TX 78701
(512) 322-2500
(512) 322-2501 (fax)
mysha.lubke@bakerbotts.com

ATTORNEY FOR APPELLANT
SUZANNA ECKCHUM

ORAL ARGUMENT REQUESTED
 TABLE OF CONTENTS
Page
Argument....................................................................................................................1

I. The Stalking Protective Order is void because it did not
conform to the State’s pleading—which requested a Family
Violence Protective Order— and thus did not invoke the trial
court’s jurisdiction.................................................................................2

II. Even under the State’s characterization of the facts, the State’s
evidence was legally and factually insufficient to prove the
criminal offense of stalking. ..................................................................7

A. The State’s scant evidence did not prove that Suzanna
knew or should have known that Hal would view her
conduct as a threat—explicit or implicit. ................................8

B. The State’s suggestions of “implicit threatening” are
insufficient evidence, especially where the record
shows no “scheme or course of conduct that is directed
specifically” at Hal. ...............................................................12

III. The State can offer no legal authority to support its assertion
that the First Amendment applies any less to citizens not
gainfully employed. .............................................................................15

IV. Nor can the State offer any legal authority relieving the State
and Hal of their obligations to provide truthful testimony..................17

V. The State misunderstands the civil procedural rules as to error
preservation; waiver; findings of facts and conclusions of law;
and formal bills of exception. ..............................................................21

A. Suzanna has not waived her First Amendment Rights..........22
B. Suzanna’s “general” pro se motion for new trial did not
waive appellate arguments. ...................................................26

C. Suzanna’s challenge to this void Stalking Protective
Order when the State’s pleading requested a Family
Violence Protective Order cannot be waived. .......................27

i
 D. The absence of the trial court’s findings of facts and
conclusions of law does not deny this Court the ability
to review all the evidence in the record to set aside the
trial court’s findings. .............................................................27

E. No formal bill of exception was necessary in this case,
and certainly not to show the falsity or improper
exclusion of Hal’s testimony. ................................................28

VI. If the Court does not void or vacate this improvidently granted
Stalking Protective Order, it should at least grant Suzanna a
new hearing and modify the restrictions in the order..........................29

Certificate of Compliance ........................................................................................32

Certificate of Service ...............................................................................................32

ii
 TABLE OF AUTHORITIES

Page(s)

CASES
Allen v. State,
218 S.W.3d 905 (Tex. App.—Beaumont 2007, no pet.) ....................................15

B.C. v. Rhodes,
116 S.W.3d 878 (Tex. App.—Austin 2003, no pet.) ..........................................28
Bebeau v. Bebeau,
09-97-517 CV, 1999 WL 742765 (Tex. App.—Beaumont Sept. 23,
1999, no pet.) ........................................................................................................3
Bever Properties, LLC v. Jerry Huffman Custom Builder, L.L.C.,
05-13-01519-CV, 2015 WL 4600347 (Tex. App.—Dallas July 31,
2015, no pet.) ....................................................................................................4, 5

BMC Software Belgium, N.V. v. Marchand,
83 S.W.3d 789 (Tex. 2002).................................................................................36

Browning v. Prostok,
165 S.W.3d 336 (Tex. 2005) ................................................................................ 3

Chance v. Chance,
911 S.W.2d 40 (Tex. App.—Beaumont 1995, writ denied) ...............................38

Chen v. Hernandez,
03-11-00222-CV, 2012 WL 3793294 (Tex. App.—Austin Aug. 28,
2012, pet. denied)................................................................................................23
Clark v. State,
03-00-00809-CR, 2001 WL 726003 (Tex. App.—Austin June 29,
2001, no pet.) ................................................................................................12, 13

Clarke v. State,
270 S.W.3d 573 (Tex. Crim. App. 2008) .....................................................31, 32

iii
Culver v. Culver,
360 S.W.3d 526 (Tex. App.—Texarkana 2011, no pet.)....................................36

Daniels v. Funes,
03-10-00317-CV, 2011 WL 2437692 (Tex. App.—Austin June 17,
2011, pet. denied)................................................................................................39
David v. David,
09-00-339CV, 2002 WL 1071432 (Tex. App.—Beaumont May 30,
2002, no pet.) ......................................................................................................32

Erlewine v. Erlewine,
03-06-00308-CV, 2007 WL 2462042 (Tex. App.—Austin Aug. 29,
2007, no pet.) ......................................................................................................40
Ex Parte Chavez,
371 S.W.3d 200 (Tex. Crim. App. 2012) ...........................................................22
Ex Parte Chabot,
300 S.W.3d 768, 772 (Tex. Crim. App. 2009) ...................................................22
Ex parte Ghahremani,
332 S.W.3d 470 (Tex. Crim. App. 2011) ...........................................................22

Ex parte Lo,
424 S.W.3d 10 (Tex. Crim. App. 2013), reh’g denied (Mar. 19,
2014) ...................................................................................................................30

Ford Motor Co. v. Castillo,
279 S.W.3d 656 (Tex. 2009) ..............................................................................27

Gillenwaters v. State,
205 S.W.3d 534 (Tex. Crim. App. 2006) ...........................................................31

Godfrey v. Godfrey,
03-07-00220-CV, 2008 WL 3166328 (Tex. App.—Austin Aug. 8,
2008, no pet.) ......................................................................................................35
Hansen v. State,
224 S.W.3d 325 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) .................. 14

iv
Hubbard v. Lagow,
576 S.W.2d 163 (Tex. Civ. App.—Austin 1979), writ refused n.r.e.
(June 6, 1979)..................................................................................................2, 33
Hurley v. Irish-American Gay, Lesbian and Bisexual Grp. of Boston,
515 U.S. 557 (1995) ............................................................................................19
Hutton v. State, 313 S.W.3d 902, 905, 907 (Tex. App.—Amarillo
2010, pet. denied)................................................................................................15
Hyundai Motor Co. v. Vasquez,
189 S.W.3d 743 (Tex. 2006) ........................................................................26, 27
In re Commitment of Hill,
334 S.W.3d 226 (Tex. 2011) ..............................................................................26
In re Commitment of Smith,
422 S.W.3d 802 (Tex. App.—Beaumont 2014), review denied
(Apr. 11, 2014)....................................................................................................38
In re F.M.B.,
02-12-00153-CV, 2014 WL 70108 (Tex. App.—Fort Worth Jan. 9,
2014, no pet.) ......................................................................................................36

In re Lee,
411 S.W.3d 445 (Tex. 2013) ..............................................................................37
In re S.S.,
217 S.W.3d 685 (Tex. App.—Eastland 2007, no pet.) .......................................28
In re Sigmar,
270 S.W.3d 289 (Tex. App.—Waco 2008, no pet.) ...........................................23

In re State,
04-14-00282-CV, 2014 WL 2443910 (Tex. App.—San Antonio
May 28, 2014, no pet.) (holding that the “holding in Ex parte Lo is
not binding in this civil proceeding”) .................................................................30
Interest of C.L.,
05-14-01520-CV, 2015 WL 682159 (Tex. App.—Dallas Feb. 18,
2015, no pet.) ........................................................................................................3

v
Lankston v. State,
827 S.W.2d 907 (Tex. Crim. App. 1992) ...........................................................31

Long v. State,
931 S.W.2d 285 (Tex. Crim. App. 1996) ............................................................. 8

McGowan v. State,
375 S.W.3d 585 (Tex. App.—Houston [14th Dist.] 2012, pet.
denied).................................................................................................................15
Moreno v. Moore,
897 S.W.2d 439 (Tex. App.—Corpus Christi 1995, no writ) .............................. 3
Office of Pub. Util. Counsel v. Pub. Util. Com’n of Texas,
878 S.W.2d 598 (Tex. 1994) ..............................................................................24
Perez v. Briercroft Serv. Corp.,
809 S.W.2d 216 (Tex. 1991) ................................................................................ 2
Ploeger v. State,
189 S.W.3d 799 (Tex. App.—Houston [1st Dist.] 2006, no pet.) ........8, 9, 14, 15

Porat v. Lincoln Towers Cmty. Ass’n,
04 CIV. 3199 (LAP), 2005 WL 646093 (S.D.N.Y. Mar. 21, 2005),
aff’d, 464 F.3d 274 (2d Cir. 2006)................................................................18, 19

Sharpe v. McDole,
03-09-00139-CV, 2010 WL 2010849 (Tex. App.—Austin May 19,
2010, pet. denied)................................................................................................39
State for Prot. of Cockerham v. Cockerham,
218 S.W.3d 298 (Tex. App.—Texarkana 2007, no pet.)...................................... 3

Teague v. State,
06-14-00053-CR, 2015 WL 2236642 (Tex. App.—Texarkana May
13, 2015, pet. denied)..........................................................................................15

Travelers Ins. Co. v. Joachim,
315 S.W.3d 860 (Tex. 2010) ................................................................................ 3

Tullos v. Eaton Corp.,
695 S.W.2d 568 (Tex. 1985) ..............................................................................33

vi
Well Solutions, Inc. v. Stafford,
32 S.W.3d 313 (Tex. App.–San Antonio 2000, no pet.) ....................................26

STATUTES
Tenn. Code Ann. § 36-3-605 .............................................................................23, 25

Tex. Code Crim. Proc. §7A ...................................................................5, 6, 7, 19, 34
Tex. Crim. Proc. Code § 7A.03 ...............................................................................36

Tex. Fam. Code Ann. § 82.006 ..........................................................................21, 22

Tex. Fam. Code Ann. § 82.008 ................................................................................21
Tex. Fam. Code Ann. § 82.009 ................................................................................21
Tex. Fam. Code §85.025 ........................................................................................5, 7

Tex. Fam. Code Ann. § 85.025(b) ...........................................................................28
Tex. Fam. Code Ann. § 87.001 ................................................................................28
Tex. Gov’t Code Ann. § 402.010 .............................................................................30

Tex. Pen. Code §25.07 .......................................................................................19, 20
Tex. Pen. Code §42.072 ...................................................................................8, 9, 14

OTHER AUTHORITIES
Senate Comm. on Criminal Justice, Bill Analysis, Tex. S.B. 97, 75th
Leg., R.S. (1997) ...................................................................................................9

Tex. R. App. P 33.1............................................................................................26, 32

Tex. R. App. P. 33.2.................................................................................................37
Tex. R. Civ. P. 324 ...................................................................................................32

Tex. R. Evid. 103 .....................................................................................................38

vii
 REPLY TO THE STATE’S STATEMENT OF FACTS
Even under its characterization of the facts—most of which are irrelevant to

the elements of the stalking offense alleged—the State for the Protection of Hal

Ketchum cannot demonstrate that the trial court properly entered the lifetime

Stalking Protective Order (“Order”). While the record shows Hal’s uncorroborated

allegations, the record also reflects the multitude of evidence contradicting Hal’s

allegations that Suzanna stalked him. Suzanna’s Br. at 7-8. The significant

deviations between the State’s factual account and the record, particularly the 122-

page trial transcript, are highlighted below, as are deviations between the State’s

legal analysis and the law itself.

ARGUMENT

The Stalking Protective Order is void because it was unsupported by the

pleadings, which requested a protective order under the family violence provisions

of the Texas Family Code. Further, none of the State’s legal arguments explain

why an applicant—even musicians with any level of self-proclaimed success—

would be relieved of his obligation to put forth truthful, legally and factually

sufficient evidence to support his allegations. Nor do any of the State’s arguments

support its suggestion that Suzanna’s constitutional rights are contingent her level

of financial success attained in her career as a journalist and musician. In short,

none of the State’s legal arguments (and certainly not its multiple assertions of

1
waiver) disprove what the record shows: the trial court erred in entering such a

restrictive Order against Suzanna, unsupported by the pleadings and weight of the

evidence.

I. The Stalking Protective Order is void because it did not conform to the
State’s pleading—which requested a Family Violence Protective
Order— and thus did not invoke the trial court’s jurisdiction.

Even putting aside the State’s arguments of waiver of due process,1 the

Order is void because the trial court did not have jurisdiction to enter a Stalking

Protective Order where the State pleaded a Family Violence Protective Order.

Suzanna’s Br. at 42-46. “[T]he purpose of pleadings is to give the adversary

parties notice of each parties[’] claims and defenses, as well as notice of the relief

sought.” Perez v. Briercroft Serv. Corp., 809 S.W.2d 216, 218 (Tex. 1991)

(emphasis added). “[T]he trial court’s jurisdiction to render judgment is invoked

by pleadings, and that part of a judgment the pleadings do not support is void.”

Hubbard v. Lagow, 576 S.W.2d 163, 166 (Tex. Civ. App.—Austin 1979), writ

refused n.r.e. (June 6, 1979). “A judgment is void only when it is apparent that the

court rendering judgment had … no jurisdiction to enter the particular judgment, or

no capacity to act.” Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 863 (Tex.

2010) (quoting Browning v. Prostok, 165 S.W.3d 336, 346 (Tex. 2005)).

1
The inapplicability of the State’s many assertions of waiver are addressed in Section V, infra.

2
 “[A] trial court may not grant relief to a party in the absence of pleadings to

support that relief.” Moreno v. Moore, 897 S.W.2d 439, 442 (Tex. App.—Corpus

Christi 1995, no writ) (declaring the portion of the judgment which purported to

grant a family violence protective order void and dissolved because the pleadings

did not invoke the provision of the Texas Family Code which permitted a mutual

protective order); see also State for Prot. of Cockerham v. Cockerham, 218 S.W.3d

298, 308 (Tex. App.—Texarkana 2007, no pet.) (voiding judgment because the

trial court lacked authority to enter a family violence protective order in the

absence of a pleading requesting that relief). The court cannot enter judgment on

an unpleaded claim. Bebeau v. Bebeau, 09-97-517 CV, 1999 WL 742765, at *2

(Tex. App.—Beaumont Sept. 23, 1999, no pet.) (reforming a child support order

that granted medical support, when only child support was pleaded); Interest of

C.L., 05-14-01520-CV, 2015 WL 682159, at *2 (Tex. App.—Dallas Feb. 18, 2015,

no pet.) (holding void the portions of an order terminating a parent’s parental right

as to two children, when the State sought termination only as to a third child).

These principles have been applied where a party’s pleadings are specific in

requesting relief under a particular statute, but the party asserts that it is entitled to

relief under a different statute. For example, in Bever, a party’s live pleading at the

time of trial asserted a claim for breach of fiduciary duty, by citing the specific

provision of the Texas Uniform Condominium Act that entitled it to that relief,

3
Section 82.103. Bever Properties, LLC v. Jerry Huffman Custom Builder, L.L.C.,

05-13-01519-CV, 2015 WL 4600347, at *13 (Tex. App.—Dallas July 31, 2015, no

pet.). The party argued on appeal that it was also entitled to relief under a

derivative fiduciary duty theory, pursuant to a different provision in the same Act,

Section 82.161(a). Id. This was asserted even though its pleading never once

mentioned that second provision. Id. Yet, the party asked the court to infer, from

the petition and its reference to the fiduciary duty claim under Section 82.103, that

the party also sought relief under Section 82.161(a). See id. The court declined,

holding that it “cannot reasonably infer that [the party] intended to plead an

independent cause of action under section 82.161(a)” for derivative fiduciary duty,

when its “petition contained a specific cause of action for breach of fiduciary

duty…[and] referred to section 82.103.” Id. at *14. Thus, when a party expressly

seeks relief under one statutory provision, that party cannot be granted relief under

a separate provision that was never mentioned in the pleadings. See id.

Likewise, this lifetime Stalking Protective Order did not conform to the

pleadings, which, as the State concedes, provided that “the [protective] order was

being sought pursuant to Chapter 85 of the Texas Family Code.” State Br. at 1. A

protective order with a lifetime duration is not available “pursuant to Chapter 85 of

the Texas Family Code.” See Tex. Fam. Code §85.025. Nor is a Stalking

Protective Order available under the Texas Family Code. See id. Nothing in the

4
State’s pleading gave notice that the State would be seeking a lifetime Stalking

Protective Order under Tex. Code Crim. Proc. §7A. See CR 4-9. As in Bever,

that statutory provision is listed nowhere in the State’s pleading. See id. Instead,

as in Bever, the State’s pleading makes repeated references to a different provision,

namely to specific family violence provisions of the Texas Family Code. See id.

Nowhere does the State’s pleading request any duration. See id. The State’s

pleading requested only general relief “as provided by law,” and the only law

under which the State sought relief in its Application was the Texas Family Code.

See id. Thus, the State’s pleading did not request the relief granted: a lifetime

Stalking Protective Order under Tex. Code. Crim. Proc. §7A.

Moreover, on appeal, the State contends that “from the beginning, the State

clearly filed a stalking protective order,” “the original protective [sic] was in fact a

stalking protective order,” and that it “never alleged that it was seeking a family

violence protective order, nor could it be inferred from the application the State

filed or the record.” State’s Br. at 20, 55. To the contrary, in the discussion of this

issue between the trial court and counsel just before the start of the hearing,

counsel for the State admitted “[w]e initially filed a regular Family Violence

Protective Order.” 2RR6.2 The State never amended its pleading, despite the trial

2
There are no transcripts available for any dates counsel was at court prior to the trial. 4SCR4-
33. The court reporter provided a supplemental reporter’s record after Suzanna’s opening brief

5
court advising the State to file a trial amendment. 2RR9; see generally ICR, SCR,

3SCR, 4SCR.

Yet, the State asks this Court to ignore its statement to the trial court that it

initially filed a regular Family Violence Protective Order to instead focus on the

handful of instances where the State used the word “stalk” in its Application.

State’s Br. at 53-54. The State requests this ignorance despite the multitude of

references in its Application invoking the Texas Family Code by specific

provisions. ICR4-7. And this request is made despite the State never referencing

the stalking criminal offense or Tex. Code Crim. Proc. §7A, all while alleging

violence—specifically that Suzanna engaged in acts that resulted in physical harm

to Hal and that Hal was “indeed physically harmed[,] suffered bodily injury[,] and

was assaulted by [Suzanna] in its “Grounds for Application” where “the State

explicitly laid out the acts engaged in by Appellant.” State’s Br. at 51; ICR6. The

record shows the State pleaded family violence and sought a Family Violence

Protective Order pursuant to Section 85 of the Texas Family Code. ICR4-7.

Because the State’s pleading invoked the Texas Family Code, and that Code

does not permit lifetime protective orders, the trial court had no authority to enter a

lifetime Stalking Protective Order and the Order is void.

was filed to include proceedings on April 2, 2015, herein referenced as one of three volumes of
the Supplemental Reporter’s Record, “SRR.”

6
II. Even under the State’s characterization of the facts, the State’s evidence
was legally and factually insufficient to prove the criminal offense of
stalking.

Without citation, the State asserts that “stalking occurs not only when there

has been a threat of bodily injury or death, but also if one knowingly engages in

conduct that would harass, annoy, alarm, abuse, torment, embarrass, or offend a

reasonable person.” State’s Br. at 18. That is a misstatement of the law.

The stalking criminal offense has three elements of conduct, each of which

needs to be met on more than one occasion: (1) a threat; (2) a subjective feeling of

fear of that threat, or feeling harassed, annoyed, alarmed, abused, tormented,

embarrassed, or offended; and (3) an objective analysis of any of those subjective

feelings. See Tex. Pen. Code §42.072; Suzanna’s Br. at 18-20. These three

elements are conjunctive elements of a single crime. See Tex. Pen. Code §42.072

(providing a conjunctive “and” between the three elements of the crime outlined in

subsections (a)(1)-(a)(3)). Further, the grammar and structure of the written statute

show that all three elements, together, are necessary to prove the crime. See

Ploeger v. State, 189 S.W.3d 799, 803 (Tex. App.—Houston [1st Dist.] 2006, no

pet.) (finding reversible error where a stalking jury charge incorrectly listed the

elements of the stalking offense as disjunctive because the use of semi-colons and

the conjunction “and,” as well as the parallel numbering “all show that the three

clauses are equal elements that together define one offense”).

7
 Moreover, the Long court long ago held as unconstitutionally vague the

State’s misinterpreted reading of the current stalking statute. Long v. State, 931

S.W.2d 285, 288 (Tex. Crim. App. 1996) (holding as unconstitutionally vague an

earlier version of the stalking statute which made it a crime to engage in conduct

that would harass, annoy, alarm, abuse, torment, or embarrass that person). The

addition of the element of threatening conduct in the current stalking statute is the

direct result of the legislature’s attempt to draft a stalking statute that complied

with Long’s recommendation to limit the prohibited conduct to threatening conduct

to avoid First Amendment complications. See Ploeger, 189 S.W.3d at 806; Senate

Comm. on Criminal Justice, Bill Analysis, Tex. S.B. 97, 75th Leg., R.S. (1997).

Thus, conduct that merely annoyed Hal is insufficient to prove stalking. See

id.

A. The State’s scant evidence did not prove that Suzanna knew or
should have known that Hal would view her conduct as a threat—
explicit or implicit.

To prove stalking, the State needed to first prove threatening conduct, and

the record is devoid of even one single threat. Suzanna’s Br. at 16-20, 25-28. So,

without any citation to the record, the State proclaims that “[t]he record shows that

for over a decade, and on multiple occasions, Mr. Ketchum was subjected to

Appellant’s explicit and implicit threats directed at himself as well as nearly every

member of his family.” State’s Br. at 25. And in the absence of evidence of even

8
one threat, on appeal, the State contends that Suzanna, “implicitly,” made “two

separate threats of bodily injury,” first by warning Hal not to mess with her, and

then by “smiling really creepily.” State’s Br. at 31-32. Even if this occurred,

which Suzanna denies and the record shows was impossible on the date Hal

alleged it occurred, this could not be legally and factually sufficient evidence to

support an allegation of stalking. Suzanna’s Br. at 7-8, 20-32; see also 2RR87-89,

95. Further, while the State now claims a second threat occurred, such a claim is

contrary to the testimony of the only two witnesses the State offered. Hal said his

life was threatened only once, when Suzanna warned him not to mess with her.

See 2RR43. And Hal’s wife testified that Suzanna made no threats other than

Suzanna allegedly making “a signal with her hand saying [‘]you’re going to be

sorry about this.[’]” 2RR55, 61. There was no threatening conduct and no

stalking, and thus, there should be no lifetime Order.

While the State now asserts that Suzanna’s mental state3 can be inferred

from what third parties told Suzanna, the only statements in the record as to what

third parties told Suzanna was based on what Hal told third parties. For example,

as evidence of Suzanna’s mental state, the State points to Suzanna’s testimony that

Dennis Hubbard told Suzanna that he asked her by email not to come on the his

3
The State made a typographical error in referencing Appellant’s mental health as opposed to
her mental state. See State’s Br. at 32. For the avoidance of doubt, the record is silent as to
whether Hal, his wife, Suzanna, or any other witness was “mentally ill.” See generally, 2RR.

9
property due to “some ill feelings” between she and Hal. 2RR98. In contending

that this testimony is evidence that Suzanna knew Hal viewed her conduct as

threatening death or bodily injury, the State asks this Court to infer that “ill

feelings” is synonymous with “threatening death or bodily injury.” See State’s Br.

at 29-30. But the record shows that Dennis’s understanding of “ill feelings” was

based on Hal telling Dennis that Hal had obtained a “restraining order” against

Suzanna. See 2RR39. One can only assume this is the same 1997 Tennessee

“restraining order” Hal swore he obtained against Suzanna. Section IV, infra.

Whatever “ill feelings” Dennis Hubbard may have alluded to, this is not evidence

sufficient to prove that Suzanna knew or should have known that her conduct cased

Hal to fear of death or bodily injury.

As other evidence of Suzanna’s mental state, the State now suggests that this

Court can look to what the State claims were Hal’s subjective fears as manifested

by his “defensive” actions—with his wife holding him back, cussing, hollering and

lunging at Suzanna as she calmly walked away—as evidence of Suzanna’s

knowledge of her allegedly threatening conduct. State’s Br. 33-34; 2RR72-73.

The State provides no legal authority holding that evidence of a victim’s mental

state is sufficient evidence of the accused’s mental state. To the contrary, “[w]hile

an accused’s intent can be inferred, “[t]he accused’s intent, however, cannot be

determined solely from what the victim believed at the time of the [alleged]

10
offense.” Clark v. State, 03-00-00809-CR, 2001 WL 726003, at *2 (Tex. App.—

Austin June 29, 2001, no pet.). In fact, during its cross-examination of Suzanna,

the State drew no testimony from Suzanna to demonstrate that she had any reason

to know Hal believed that she was threatening life or bodily injury by taking

photographs and being in the same town as Hal. 2RR100-102.

Moreover, the State’s “defensive” theory is foreclosed by the only appellate

opinion involving a Section 7A stalking protective order to date, in which the

appellate court declined to consider only the applicant’s testimony in analyzing the

evidence. In Franklin, the Court vacated a stalking protective order because,

“absent [Applicant’s] testimony, there was no evidence that [Respondent] had, on

more than one occasion and pursuant to the same scheme or course of conduct,

threatened or harassed Franklin with bodily injury or with injury to her property.”

2014 WL 1722165, at *10. There, the Respondent ranted at the Applicant on

multiple occasions, and during a confrontation, the Applicant advanced towards

the Respondent after “mutual provocation” and engaged in “mutual combat.” Id.

at *8. Because Applicant was the party who advanced, just as Hal lunged forward

at Suzanna, 2RR72, the Franklin court found that the Applicant did not fear death

or bodily injury from the Respondent. Id. at *9. And despite evidence that the

parties were in the same places at the same time, the court found that this was not

purposeful following, “but that the two happened to run into each other at various

11
locations within their shared community.” Id. at *9. Despite these factual

similarities, the State suggests the facts in Franklin are distinguishable because the

parties there had known each other for only three years, whereas Hal and Suzanna

met at least as early as 1994 when Suzanna interviewed Hal for a published

newspaper article. State’s Br. at 38; Exs. 1-2, 2RR67-70 (Suzanna’s testimony).

That distinction is meaningless.

Thus, contrary to the State’s assertion that Hal “exhibited remarkable

restraint,” State’s Br. at 39, instead, the record, through the testimony of an

independent and unwilling shopkeeper who witnessed Hal’s alleged “gun

incident,” shows that Hal was remarkably restrained. See 2RR71-72. There is no

evidence that Suzanna knew her conduct would cause Hal to fear death or bodily

injury.

B. The State’s suggestions of “implicit threatening” are insufficient
evidence, especially where the record shows no “scheme or course
of conduct that is directed specifically” at Hal.

Other than alleging Suzanna pointed her fingers at Hal in the shape of a gun

and “smiled creepily,” the State did not provide a single response to Suzanna’s

demonstration that Suzanna’s conduct was “directed specifically” at no one.

Suzanna’s Br. at 28-32 (demonstrating the implausibility of Hal’s allegations that

Suzanna attended music venues because she knew Hal would be there); see

generally State’s Br. 30-39. While the State points to a number of cases

12
purportedly supporting what the State terms “implicit threatening,” those cases

more readily show the level of evidence necessary to prove a “scheme or course of

conduct that is directed specifically at another person.” See Tex. Pen. Code

§42.072.

In Hansen v. State, the accused gave the 11-year-old victim’s parent a

painting depicting a nude girl resembling the child, left poems and notes for the

child, and returned to the child’s home in the middle of the night to leave gifts.

224 S.W.3d 325, 327 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). In

Ploeger, the accused passed notes to the victim during church services, left gifts

and for her, and called her nearly daily. 189 S.W.3d at 803. The evidence also

showed that the accused directed his conduct toward the victim so much so that,

intending to contact his victim, he showed up to the workplace of the victim’s

mother who shared the same first and last name with her daughter. Id. at 808.

Likewise, in Teague, McGowan, and Allen, the accused attempted to contact the

victim by phone or in-person multiple times. Teague v. State, 06-14-00053-CR,

2015 WL 2236642, at *7 (Tex. App.—Texarkana May 13, 2015, pet. denied);

McGowan v. State, 375 S.W.3d 585, 587 (Tex. App.—Houston [14th Dist.] 2012,

pet. denied); Allen v. State, 218 S.W.3d 905, 909 (Tex. App.—Beaumont 2007, no

pet.). And in Hutton v. State, the accused was convicted under an earlier version of

the stalking statute where the requisite conduct “includ[ed] following the other

13
person,” and the accused followed his victims in his car as the victims were on foot

and alone. 313 S.W.3d 902, 905, 907 (Tex. App.—Amarillo 2010, pet. denied).

These cases demonstrate conduct “directed specifically” at another

evidenced by the accused calling the victim, leaving items with the victim’s name

on it, or attempting to contact the victim directly. In stark contrast, this record

shows that Suzanna never directed her conduct at Hal or his family, never

threatened Hal or anyone in his family, and is not stalking Hal. 2RR99-100. Even

Hal’s wife agreed that Suzanna never called Hal’s home, never sent Hal mail,

never left things at Hal’s house. 2RR61. Hal agreed that Suzanna does not speak

to Hal or his family directly. 2RR44.

Instead, the record demonstrates that the interactions between the parties

were chance encounters by two people living in the same cities and working in the

same industry. 4 Suzanna’s Br. at 28-32. With no evidence in the record otherwise,

the State attempts to cast Suzanna as a star-struck fan, who masquerades as a

journalist to get close to Hal—as alleged by Hal’s wife of 11 months. 2RR54, 108.

The record forecloses that theory as shown by the multitude of evidence of

Suzanna’s journalism at community events spanning decades. 2RR67-70, 77-79;

Exs. 1-4, 6.

4
Again, the State misrepresents the facts elicited at trial in its assertion that Suzanna was stopped
by the police on the same date that she discovered Hal’s address in a magazine. State’s Br. at 10.
To the contrary, Suzanna’s testimony was that at the time the police stopped her, she did not
know where Hal lived. 2RR80.

14
 The State can point to no legally and factually sufficient evidence of any

conduct by Suzanna that was a threat of bodily injury or death directed specifically

at Hal or his family.

III. The State can offer no legal authority to support its assertion that the
First Amendment applies any less to citizens not gainfully employed.

The State’s assertion that Suzanna “has knowingly placed Mr. Ketchum and

his family in great fear of bodily injury and death due, in part, to the photos she

takes of them and her appearances at his concerts,” is absurd. State’s Br. at 45.

The only evidence in the record that Suzanna ever took photographs of Hal or his

family were newspaper articles she wrote and published. Exs. 1-2. And the State

misrepresents the record in saying that “Appellant alleges…that she sometimes

appears at Mr. Ketchum’s concerts and takes pictures of his entire family and his

home.” State’s Br. at 36. Instead, the record shows that Suzanna testified that

she—for publication in periodicals—took pictures of a separate museum near the

property on which Hal rents and its owner, but never took pictures of Hal or his

family. 2RR89-90, 96. Hal’s wife confirmed this on cross-examination when she

backtracked from asserting that Suzanna came on Hal’s rented property, to clarify

that Suzanna was on the Fischer Store property, a different property with a

different owner. 2RR61-62.

Moreover, the State cites no legal authority to support its conclusion that our

First Amendment protections are only available when we are successful as

15
measured by salaries and earnings. See State’s Br. at 47. The State points to no

authority holding the First Amendment protection is based on the value of the

speech. Instead, speech is protected based on the existence of a targeted audience.

See Porat v. Lincoln Towers Cmty. Ass’n, 04 CIV. 3199 (LAP), 2005 WL 646093,

at *1 (S.D.N.Y. Mar. 21, 2005), aff’d, 464 F.3d 274 (2d Cir. 2006) (holding

Porat’s photographs of a tower in New York City were not protected from

prohibitions of photography after 9/11 because the photographs were not

communicative as he had no intended audience for them, except himself and his

own “recreational” purposes as a “photo hobbyist.”). In contrast, Suzanna’s

intended audience for her photographs are the readers of the periodicals in which

her work is published. Exs. 1-4, 6.

The State’s analysis of Tex. Pen. Code §25.07 does not change First

Amendment law either, but does disprove the State’s earlier arguments of legal

sufficiency. The State suggests that Suzanna could not be prosecuted under that

provision for “[t]aking photos or images of applicant.” State’s Br. at 43-44. It

posits that Suzanna could not possibly be found to have knowingly or intentionally

communicated a threat should an audience member captured in her photograph be

Hal, because in such a case, the mental state would be lacking. See id. at 44. Yet,

to secure this unconstitutionally restrictive Order, the State needed to prove those

same elements of knowing conduct that communicated a threat. See Section II,

16
supra; Suzanna’s Br. at 16-20. And as to this Order, the State asserts that it

succeeded because sufficient evidence that Suzanna “knowingly” placed Hal in

“great fear” of bodily injury and death was shown in the photographs she allegedly

took of him at concerts. State’s Br. at 45. Thus, in attempting to explain why the

trial court’s order does not infringe on Suzanna’s First Amendment rights to take

photographs, the State concedes Suzanna’s taking photographs at music venues

cannot be stalking—knowing conduct communicating a threat.

Thus, the suggestion that Suzanna’s presence at public music venues armed

with camera and recording devices should not enjoy any First Amendment

protection is not supported by any authority or the record. The trial court erred in

construing the applicable statutory scheme as permitting infringement on

Suzanna’s First Amendment rights.

IV. Nor can the State offer any legal authority relieving the State and Hal of
their obligations to provide truthful testimony.

The record and Tennessee law both demonstrate that the State provided or

failed to correct Hal’s false testimony that he obtained a stalking restraining

against Suzanna on February 14, 1997 in Davidson County, Tennessee.5 This

protective order was the only piece of documentary evidence the State was

5
“Mr. Ketchum emphatically insisted that he had a prior protective order out of” Davidson
County, Tennessee, not Kentucky. State’s Br. at 50.

17
required by law to provide the trial court, 6 yet, the State offered not a single

document into evidence. See generally 2RR; 4RR.

The State’s arguments in response to Appellant’s demonstration that Hal

never obtained a restraining order in Tennessee in 1997 is telling for what it does

not say: that Hal’s testimony on that issue was truthful. And the State doesn’t

contest that “[a] due-process violation may arise not only through false testimony

specifically elicited by the State, but also by the State’s failure to correct testimony

it knows to be false.” Ex parte Ghahremani, 332 S.W.3d 470, 477 (Tex. Crim.

App. 2011). The State does not deny that Hal provided a signed affidavit saying he

obtained a prior order for his protection against Suzanna in Tennessee. State Br. at

1. Nor does the State deny that Hal testified on multiple occasions about this

alleged restraining order. 2RR14-15, 27-28, 30, 33-34, 39.

Instead, the State ignores Tennessee law, which did not permit stalking

orders of protection until 2005—eight years after Hal claimed to have obtained an

6
Despite pleading that “[d]ue to the immediacy of this application and the unavailability of
documentation, any decree which may be required pursuant to Section 82.009 of the Family
Code will be filed with this Court before the hearing on this Application,” ICR6, the State
maintains that “[t]here is no requirement that restraining orders be attached to the protective
order applications.” Nomenclature aside, the Family Code requires a copy of protective orders to
be attached or provided at trial. Tex. Fam. Code Ann. § 82.008. But the State’s response is
wholly silent on what “documentation” it intended to file, as alleged in its Application. See
generally State’s Br. at 51-52. The only other applicable provision is Section 82.006, which
requires a copy of a divorce decree to be attached or filed with the court at the hearing, which
would suggest the State alleged a family relationship. Tex. Fam. Code Ann. § 82.006.

18
order in 1997. Tenn. Code Ann. § 36-3-605; 2005 Tennessee Laws Pub. Ch. 381

(S.B. 645). The State contends that this Court cannot consider this statute because

the statute is “outside the [appellate] record.” State’s Br. at 50, n.1. However,

legal practices and procedures under laws outside of Texas “are legislative facts

about which a trial or appellate court may take judicial notice without prompting

by the parties.” Chen v. Hernandez, 03-11-00222-CV, 2012 WL 3793294, at *13

(Tex. App.—Austin Aug. 28, 2012, pet. denied) (taking judicial notice of the law

regarding obtaining Taiwan passports); In re Sigmar, 270 S.W.3d 289, 302 (Tex.

App.—Waco 2008, no pet.) (taking judicial notice of a country’s compliance with

the Hague Convention). Further, “[a] court of appeals has the power to take

judicial notice for the first time on appeal.” 7 Office of Pub. Util. Counsel v. Pub.

Util. Com’n of Texas, 878 S.W.2d 598, 600 (Tex. 1994). Thus, contrary to the

State’s assertion otherwise, this Court may properly consider the law of Tennessee

as “unequivocal evidence of false testimony,” as well as the full appendix to

Suzanna’s Brief. State’s Br. at 50.

And the State now attempts to justify the falsity of Hal’s testimony by

asserting that there is some distinction between the colloquially interchangeable

terms, “restraining order” and “protective order.” See State’s Br. at 3, 51

(acknowledging that Hal used the terms interchangeably, but suggesting that Hal’s

7
Suzanna requests this Court take judicial notice of the applicable Tennessee law.

19
testimony was not false because he swore he received a “restraining order,” not a

“protective order”). There can be no mistake that Hal testified that “there was an

anti-stalking law and restraining order in Nashville that was implemented on my

behalf,” and that it permitted him to show a picture of Suzanna to the police and

ask the police to exclude Suzanna from public premises. 2RR14. Hal further

testified that he told at least three venue owners that he had a restraining order

against Suzanna and they should exclude her from their properties. 2RR39. No

matter how the State, on appeal, seeks to standardize the nomenclature of its

allegations, calling what Hal said he had a “restraining order” as opposed to a

“protective order” cannot change Texas law which requires truthful testimony.

Further, even assuming the State’s contention that headings in the

Application govern the construction of the body of the Application is correct,

State’s Br. at 51, the State’s pleading provided that Hal’s supporting affidavit was

incorporated by reference into the Application as if set forth in full therein. ICR6,

8-9. Thus, the State’s pleading made false claims when alleging the grounds for

stalking in its Application.

In light of the record and the law, this false testimony elicited and failed to

correct permeated the evidence at trial, and prevented Suzanna from having a fair

trial, which resulted in this restrictive Order. Her due process rights were violated.

20
V. The State misunderstands the civil procedural rules as to error
preservation; waiver; findings of facts and conclusions of law; and
formal bills of exception.

The State turns to waiver and asserts procedural failings because no legal

arguments the State could offer disprove what the record shows: that the trial court

erred in entering such a restrictive protective order against Suzanna that endures

for her lifetime and is wholly incongruous to the scant evidence of stalking the

State could muster. But the State misunderstands the procedural rules, and all of

its waiver arguments fail, for the reasons below.

As a foundational principle, “[a] party preserves error by a timely request

that makes clear—by words or context—the grounds for the request and by

obtaining a ruling on that request, whether express or implicit.” In re Commitment

of Hill, 334 S.W.3d 226, 229 (Tex. 2011); see Tex. R. App. P 33.1. “A ruling is

implicit if it is unexpressed but capable of being understood from something else.”

Well Solutions, Inc. v. Stafford, 32 S.W.3d 313, 316 (Tex. App.–San Antonio 2000,

no pet.). These are the rules, “[b]ut [error preservation] rules are not traps.”

Hyundai Motor Co. v. Vasquez, 189 S.W.3d 743, 766 (Tex. 2006). Instead,

“[p]reservation rules exist to inform courts of error in a plain and timely manner so

that they can make informed rulings.” Id. at 767. And where the trial court

acknowledges that it understood the basis of a request, but permitted no further

argument or refused to grant it, this is sufficient to preserve error. Ford Motor Co.

21
v. Castillo, 279 S.W.3d 656, 661 (Tex. 2009) (concluding that because “the trial

court clearly understood [the party’s] request and just as clearly refused to grant

it,” this was sufficient to preserve error).

As discussed below, Suzanna has not waived any of her appellate arguments.

A. Suzanna has not waived her First Amendment Rights.

Contrary to the State’s assertion, Suzanna did not contend, “for the first time

on appeal, that the statutory framework is unconstitutional and that the trial court’s

lifetime protective order” infringes on Suzanna’s First Amendment rights to take

photos. State’s Br. at 19. The record shows that the trial court was made aware of

the issue and ruled upon it, prior to appeal.

Proceeding pro se, Suzanna informed the court that she wanted a new trial

because “the facts and the law does not support the order.”8 CR26 (emphasis

added). A hearing was held on that motion within the trial court’s plenary power.

3SRR1-23. At that time, and even now, the trial court could (and still can) modify

the protective order because “[d]uring the effective period of a protective order, the

trial court retains the power and jurisdiction to modify the order.” In re S.S., 217

S.W.3d 685, 687 (Tex. App.—Eastland 2007, no pet.); B.C. v. Rhodes, 116 S.W.3d

878, 881 (Tex. App.—Austin 2003, no pet.); Tex. Fam. Code Ann. § 87.001

(governing procedural steps for modification of a protective order); Tex. Fam.
8
The State misstates the record in contending that Suzanna’s motion for new trial requested a
new trial “based on the facts does not support the order.” State’s Br. at 17, 40.

22
Code Ann. § 85.025(b) (setting timeline for motions to modify). The effective

period of the Order is the rest of Suzanna’s life. 3SCR9.

At the hearing on Suzanna’s motion for new trial, granted only ten minutes

on a one-hour setting, 2SRR3, Suzanna’s counsel stated before the trial court

interjected: “I just want to make the Court aware of we all have a Constitutional

right to take pictures of things that are in the public. If we are telling Ms. Eckchum

that she can’t take pictures at some extent we’re infringing—” 3SRR15. The trial

court interjected by asking Suzanna’s counsel how she would recommend that the

court make the order more specific, and she responded that she couldn’t offer a

recommendation. 3SRR16.

After more discussion, the trial court denied the motion for new trial and

modified its order. 3SRR17-19. But even after the denial, Suzanna’s counsel

twice persisted and insisted that the trial court reconsider the constitutional

challenges, stating “Your Honor, I know you have already overruled the motion,

but…if she can’t go to a venue to take pictures of anyone else who may be there

just because Hal Ketchum is there or is scheduled to be there…she basically can’t

do her job and that brings up—” 3SRR19-20. The trial court again interjected

stating that Suzanna’s right to earn a living through her photography was less

important than Hal’s desire to feel protected, especially considering that “she

wasn’t making much, if any money,” from her photography. 3SRR20. And one

23
final time, Suzanna’s counsel tried, in vain, to convince the trial court to re-

consider its position on Suzanna’s constitutional rights informing the trial court

that the criminal provisions at issue were unconstitutional. 3SRR21.

After all of that, the State on appeal asserts that Suzanna waived her

constitutional rights because “Appellant never mentioned any First Amendment

issues” and the court could not “clearly understand what was alleged as error.”

State’s Br. at 42. To the contrary, Judge Stephens stated in response to Suzanna’s

final attempt to have the trial court reconsider its position on Suzanna’s

constitutional rights: “Well, I understand it.” 3SRR22. The trial court continued

by denying Suzanna’s constitutional arguments because (1) they were not raised at

the original hearing and (2) Suzanna did not provide notice to Texas Attorney

General of her constitutional challenges to the applicable statutes. 9 3SRR22. The

trial court curtailed any further argument on the constitutional issues. See id.

Again, the record disproves the State’s assertion that Appellant never mentioned

any First Amendment issues. 3SRR15, 19-20. The constitutionality of the

applicable statutory scheme prohibiting Suzanna from taking pictures was before

9
The trial court seems to have been referencing a statute requiring a party who challenged a
statute’s constitutionality to file notice of the challenge with the Texas Attorney General, Tex.
Gov’t Code Ann. § 402.010, held to be an “unconstitutional violation of separation of powers.”
Ex parte Lo, 424 S.W.3d 10, 30 (Tex. Crim. App. 2013); but see In re State, 04-14-00282-CV,
2014 WL 2443910, at *3 (Tex. App.—San Antonio May 28, 2014, no pet.) (holding that the
“holding in Ex parte Lo is not binding in this civil proceeding”).

24
the trial court, and the trial court denied the challenge, at least by denying the

motion for new trial.

Furthermore, to the extent the State is suggesting that Suzanna’s First

Amendment rights were waived because the magic words “First Amendment”

weren’t uttered, the State is misguided. In interpreting criminal statutes like the

ones at issue, the Texas Court of Criminal Appeals has held that “[s]traightforward

communication in plain English will always suffice.” Lankston v. State, 827

S.W.2d 907, 909 (Tex. Crim. App. 1992). The “cases do not stand for the

proposition that a specific constitutional provision that is cited on appeal must also

have been cited to the trial judge.” Clarke v. State, 270 S.W.3d 573, 582-83 (Tex.

Crim. App. 2008). “As regards specificity, all a party has to do to avoid the

forfeiture of a complaint on appeal is to let the trial judge know what he wants,

why he thinks himself entitled to it, and to do so clearly enough for the judge to

understand him at a time when the trial court is in a proper position to do

something about it.” Lankston, 827 S.W.2d at 909. “The fact that the legal

argument was not presented in his original written motion [for new trial] does not

prevent appellant from having his claim heard on appeal. The argument was

presented to the trial judge in time for him to rule on it. That is all that is required.”

Clarke v. State, 270 S.W.3d 573, 580 (Tex. Crim. App. 2008)

25
 Thus, the law—and the record—do not support the State’s theory of waiver

of Suzanna’s First Amendment rights.

B. Suzanna’s “general” pro se motion for new trial did not waive
appellate arguments.

“A point in a motion for new trial is not a prerequisite to a complaint on

appeal in either a jury or a nonjury case,” except in one of five enumerated

instances, none of which apply to this case. Tex. R. Civ. P. 324 (emphasis added).

Further, the State is incorrect that Suzanna’s motion for new trial, sought to or

even needed to, preserve any factual or legal sufficiency claims. See State’s Br. at

41. It is well-known that “[i]n a nonjury case, a complaint regarding the legal or

factual insufficiency of the evidence…may be made for the first time on appeal in

the complaining party’s brief.” Tex. R. App. P. 33.1.

The trial court denied Suzanna’s motion for new trial, but did comply with

legal authority holding that it should have ruled on the motion. See David v.

David, 09-00-339CV, 2002 WL 1071432, at *1 (Tex. App.—Beaumont May 30,

2002, no pet.) (holding that a pro se litigant’s motion for new trial was properly

considered even though it was overly general because “pro se pleadings are

evaluated under more lenient standards than those applied to formal pleadings

drafted by lawyers”).

There is no waiver here.

26
 C. Suzanna’s challenge to this void Stalking Protective Order when
the State’s pleading requested a Family Violence Protective Order
cannot be waived.

This Order is void because the State’s pleading did not request a stalking

protective order, and thus did not invoke the trial court’s jurisdiction. Section I,

supra. As noted above, “the trial court’s jurisdiction to render judgment is invoked

by pleadings, and that part of a judgment the pleadings do not support is void.”

Hubbard, 576 S.W.2d 163 at 166. Texas law is clear that “[t]he question of

jurisdiction is fundamental and can be raised at any time.” Tullos v. Eaton Corp.,

695 S.W.2d 568 (Tex. 1985).

Thus, the State’s response to Suzanna’s assertion that the Order is void with

arguments regarding waiver of due process and notice misses the mark.

D. The absence of the trial court’s findings of facts and conclusions
of law does not deny this Court the ability to review all the
evidence in the record to set aside the trial court’s findings.

The State suggests that this Court should turn a blind eye to the

contradictory evidence and facts shown in the record because the trial court

determined that stalking occurred and Suzanna did not request findings of facts and

conclusions of law. State’s Br. at 22-23. To the contrary, in determining the

factual sufficiency in a protective order finding, this Court should “consider,

weigh, and examine all of the evidence in the record, both supporting and against

the finding, to decide whether the finding should be set aside.” Godfrey v.

27
Godfrey, 03-07-00220-CV, 2008 WL 3166328, at *1 (Tex. App.—Austin Aug. 8,

2008, no pet.). While facts to support a judgment are implied when a trial court

does not issue findings of fact and conclusions of law, “[w]hen the appellate record

includes the reporter’s and clerk’s records, these implied findings are not

conclusive and may be challenged for legal and factual sufficiency in the

appropriate appellate court.” BMC Software Belgium, N.V. v. Marchand, 83

S.W.3d 789, 795 (Tex. 2002).

This Court may properly consider the full record even in the absence of

findings of fact and conclusions of law.

E. No formal bill of exception was necessary in this case, and
certainly not to show the falsity or improper exclusion of Hal’s
testimony.

The State contends that Appellant needed to file a formal bill of exception

for this Court to consider evidence of Hal’s false testimony and the trial court’s

improper exclusion of Hal’s testimony. State’s Br. at 21, 48. No such thing is

needed for this Court to take judicial notice of Tennessee law. See Section IV,

supra. And “[w]hen cross-examination testimony is excluded, appellant need not

show the answer to be expected but only need show that the substance of the

evidence was apparent from the context within which the question was asked.” In

re Commitment of Smith, 422 S.W.3d 802, 808 (Tex. App.—Beaumont 2014),

review denied (Apr. 11, 2014). During cross-examination, Hal was asked what

28
contact Suzanna had with him since 1997 and how she had threatened him.

Suzanna’s Br. at 47-49. It is apparent from the context of those questions that the

substance of the evidence sought was Hal’s testimony as to what, if anything, Hal

believed Suzanna had done to him since 1997. And because the trial court

excluded this testimony, the record is silent as to those allegations. No formal bill

of exception was required.

VI. If the Court does not void or vacate this improvidently granted Stalking
Protective Order, it should at least grant Suzanna a new hearing and
modify the restrictions in the order.

The State does not even try to justify the excessive provisions in the Order

by pointing to other orders with similarly large distances for stay-away provisions

of lifetime durations. And while the State cannot point to a stalking protective

order upheld on appeal, a search for family violence protective order yielded stay-

away provisions dwarfed by the 1,000 yards the trial court originally ordered. See

e.g., Daniels v. Funes, 03-10-00317-CV, 2011 WL 2437692, at *4 (Tex. App.—

Austin June 17, 2011, pet. denied) (300 yards); Sharpe v. McDole, 03-09-00139-

CV, 2010 WL 2010849, at *1 (Tex. App.—Austin May 19, 2010, pet. denied) (200

yards); Erlewine v. Erlewine, 03-06-00308-CV, 2007 WL 2462042, at *5 (Tex.

App.—Austin Aug. 29, 2007, no pet.) (same).

Contrary to the trial court’s implicit finding, the excessive restrictions in this

Order were not necessary for Hal’s protection. Suzanna cannot attend music

29
venues where she regularly performs. 2RR84, 114-115, 119 (testifying that

Suzanna regularly plays at the Cypress Creek Cafe, which the trial judge did not

hear). For the rest of Suzanna’s life, she cannot be found within 1,000 feet of any

place near a school located in a central business district in Wimberley. 3SCR7-10;

3SRR13-14. And this is all in addition to being unable to photograph for the rest

of her life. Id. These restrictions are incongruous with the scarcity of evidence of

Suzanna’s conduct that would constituted the criminal offense of stalking. The

only reasonable decision was for the trial court to make a finding of no stalking.

The trial court abused its discretion.

30
Respectfully submitted,

By: /s/ Mysha Lubke
Mysha Lubke
State Bar No. 24083423
mysha.lubke@bakerbotts.com
BAKER BOTTS L.L.P.
98 San Jacinto Blvd., Suite 1500
Austin, TX 78701
Telephone: (512) 322-2500
Facsimile: (512) 322-2501
ATTORNEY FOR APPELLANT
SUZANNA ECKCHUM

31
 CERTIFICATE OF COMPLIANCE

As required by Texas Rule of Appellate Procedure 9.4(i)(3), I certify that
this brief contains no more than 7,499 words, excluding the parts of the brief
exempted by Rule 9.4(i)(l).

/ s / Mysha Lubke
Mysha Lubke

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing has been served
by electronic mail and by fax on this 30th day of November, 2015:

Counsel for the State of Texas for the Protection of Hal Ketchum:
Nick Robinson
The Honorable Jennifer A. Tharp
Comal County Criminal District Attorney
150 North Seguin, Suite 370
New Braunfels, Texas 78130

/ s / Mysha Lubke
Mysha Lubke

32