COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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LEAH BELINDA LOPEZ, No. 08-17-00252-CV
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Appellant, Appeal from
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v. 65th District Court
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LILIA ISELA CRISANTO, of El Paso County, Texas
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Appellee. (TC # 2017DCM1462)
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OPINION
This is an appeal from an order granting a protective order in favor of Appellee Lilia Isela
Crisanto and against Appellant Leah Belinda Lopez, based on a finding that Crisanto was the
victim of stalking. Lopez contends that the trial court’s finding was not supported by legally or
factually sufficient evidence. For the reasons set forth below, we disagree, and we therefore
affirm the trial court’s order.
PROCEDURAL AND FACTUAL BACKGROUND
On March 3, 2017, Crisanto applied for a protective order pursuant to Article 7A.01 of the
Texas Code of Criminal Procedure, alleging that Lopez had engaged in conduct that constituted
stalking. The trial court held a hearing on Crisanto’s application on October 23, 2017. Although
Lopez was duly notified of the hearing, she did not personally appear at the hearing, but was
represented by counsel.1
At the hearing, Crisanto testified that prior to their divorce in April of 2017, Lopez and her
then-husband, Jose Crisanto, began having an affair. According to Crisanto, she learned of the
affair sometime in 2016 when Lopez sent her an e-mail to which Lopez attached photographs of
Crisanto’s husband and Lopez engaged in sexual intercourse, together with the following message:
“[T]his is what I’m doing with your husband.” Crisanto testified that Lopez thereafter sent her
multiple e-mails and as many as 50 text messages, to which she attached additional photographs
of Lopez and Crisanto’s husband having anal and oral sex. At least eight of the photographs were
introduced into evidence at the hearing, and Crisanto identified them as being photographs Lopez
had sent her through electronic means. Lopez presented no evidence to rebut Crisanto’s
testimony that Lopez was the sender of the various communications in question.
Crisanto also recalled that when she went into her front yard one morning in March of
2017, she found four “inappropriate” photographs that Crisanto believed Lopez had left in the yard
for her to find, which again depicted Lopez and Crisanto’s husband engaged in various sexual acts.
Crisanto testified that there was a message on the back of one of the photographs, which she
believed Lopez had written, to the effect that the photographs were “evidence” that Crisanto’s
husband was “still f***ing” her. According to Crisanto, she responded only one time to Lopez’s
communications, asking her to stop. However, because Lopez failed to stop, Crisanto contacted
the police on two or three occasions over the course of several months in 2016 and 2017, and filed
at least one written police report in 2017 complaining about Lopez’s conduct. Crisanto testified
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Prior to the hearing, Lopez filed a counterapplication seeking a protective order against Crisanto, but the trial court
dismissed her counterapplication due to Lopez’s failure to appear at the hearing. The dismissal of the
counterapplication is not at issue in this appeal.
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that Lopez’s conduct caused her to feel “humiliated,” “threatened,” “insecure,” and concerned for
her safety. She further testified that because of the “horrendous” nature of Lopez’s conduct, she
found it necessary to seek psychiatric counseling.
At the close of the hearing, the trial court issued a protective order against Lopez pursuant
to Chapter 7A of the Code of Criminal Procedure, expressly finding that there were “reasonable
grounds to believe that [Crisanto] is the victim of stalking.” The order, which expires on October
22, 2019, prohibits Lopez from communicating with Crisanto in a “threatening or harassing
manner,” from coming within 200 yards of her business or residence, and from engaging in
conduct that is “reasonably likely to harass, annoy, alarm, abuse, torment, or embarrass” Crisanto.
DISCUSSION
Lopez argues in two related issues that the evidence presented at the hearing was both
legally and factually insufficient to support the trial court’s finding that Crisanto was the victim of
stalking. In support of her argument, Lopez contends that Section 42.072 of the Texas Penal
Code, which defines the offense of stalking, required Crisanto to present evidence that Lopez’s
conduct caused her to be in fear of bodily injury or death, or in fear that an offense would be
committed against her property. Lopez contends that Crisanto presented no evidence from which
the trial court could have found that she had any such fear. However, as explained below, under
the current version of the Penal Code, Crisanto was not required to present evidence that she had
any such fears in order to support the trial court’s finding that she was the victim of stalking;
instead the trial court was entitled to find that Crisanto was a stalking victim for purposes of issuing
a Chapter 7A protective order based solely on evidence that Lopez engaged in the type of harassing
conduct described by Crisanto at the hearing.
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The Current Version of the Stalking Statute
The Texas Code of Criminal Procedure gives a trial court the authority to issue a protective
order “without regard to the relationship between the applicant and the alleged offender” if, after
holding a hearing, the court determines “there are reasonable grounds” to believe the applicant is
the victim of certain specified Penal Code offenses, including the offense of stalking. TEX.CODE
CRIM.PROC.ANN. art. 7A.01(a)(1); 7A.03. In turn, stalking is defined in Section 42.072 of the
Texas Penal Code. Prior to 2013, Section 42.072 of the Penal Code defined stalking as only
including situations in which the perpetrator engaged in threatening conduct that placed the victim
in fear of bodily injury or death, or in fear that an offense against the victim’s property might take
place. However, effective September of 2013, the Legislature amended the Code to expand the
definition of stalking to also include situations in which the perpetrator engaged in conduct that
constituted the offense of “harassment” under Section 42.07 of the Penal Code. 2 See Acts of
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In particular, Section 42.072 of the Penal Code, the stalking statute, was amended as follows, with the added
language in bold:
(a) A person commits an offense if the person, on more than one occasion and pursuant to the same
scheme or course of conduct that is directed specifically at another person, knowingly engages in
conduct that:
(1) constitutes an offense under Section 42.07, or that the actor knows or reasonably should
know [believes] 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 [fear]:
(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.
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May 24, 2013, 83rd Leg., ch. 1278 (H.B. 1606), § 2, TEX.GEN.LAWS 3231; Shoemaker v. State,
493 S.W.3d 710, 716–17 (Tex.App--Houston [1st Dist.] 2016, no pet.)(recognizing legislative
changes to the stalking statute); see also Seals v. Wilbourn, ___S.W.3d ___, No. 12-17-00208-CV,
2018 WL 1180742, at *2 (Tex.App.--Tyler, Mar. 7, 2018, pet. denied)(affirming trial court’s
finding that a protective order applicant was the victim of stalking based solely on the respondent’s
harassing conduct). Thus, Section 42.072 of the Code now reads, in relevant part, that: “A person
commits [the] offense [of stalking] if the person, on more than one occasion and pursuant to the
same scheme or course of conduct that is directed specifically at another person, knowingly
engages in conduct that: (1) constitutes an offense under Section 42.07 . . . ; (2) causes the other
person . . . to feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended; and
(3) would cause a reasonable person to . . . feel harassed, annoyed, alarmed, abused, tormented,
embarrassed, or offended. TEX.PENAL CODE ANN. § 42.072.
In turn, Section 42.07 of the Code provides, in relevant part, that: “A person commits
[the] offense [of harassment] if, with intent to harass, annoy, alarm, abuse, torment, or embarrass
another, the person: (1) initiates communication and in the course of the communication makes
a comment, request, suggestion, or proposal that is obscene . . . [and] (7) sends repeated electronic
communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass,
or offend another.” TEX.PENAL CODE ANN. § 42.07(a)(1)(7). The term “obscene” is defined in
the harassment statute as a communication “containing a patently offensive description of or a
solicitation to commit an ultimate sex act, including sexual intercourse, masturbation, cunnilingus,
fellatio, or anilingus . . . .” TEX.PENAL CODE ANN. § 42.07(b)(3). The term “electronic
Acts of May 24, 2013, 83rd Leg., ch. 1278 (H.B. 1606), § 2, TEX.GEN.LAWS 3231 (current version
at TEX.PENAL CODE ANN. § 42.072
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communication” is defined in the statute as including, among other things, communications sent
via electronic mail and text messages. TEX.PENAL CODE ANN. § 42.07(b)(1)(A).
In the present case, Lopez’s conduct took place in 2016 and 2017, well after the effective
date of the amendments to the Penal Code, which expanded the definition of stalking to include
the above-described types of harassing conduct. Accordingly, we will review Lopez’s argument
that there was insufficient evidence to support the trial court’s finding that Crisanto was the victim
of stalking, for purposes of issuing a Chapter 7A protective order, with this expanded definition of
stalking in mind.
Standard of Review
We review a trial court’s decision to grant or deny a Chapter 7A protective order for both
legal and factual sufficiency of the evidence. See State for Prot. of P.B. v. V.T., 575 S.W.3d 921,
924 (Tex.App--Austin 2019, no pet.); Webb v. Schlagal, 530 S.W.3d 793, 802 (Tex.App--Eastland
2017, pet. denied); Shoemaker, 493 S.W.3d at 714-15; see generally In re Doe, 19 S.W.3d 249,
253 (Tex. 2000)(“When the trial court acts primarily as a factfinder, appellate courts normally
review its determinations under the legal and factual sufficiency standards.”).
In resolving a legal sufficiency challenge, we consider whether the record evidence would
have enabled “a reasonable and fair-minded fact finder” to render the decision under review. See
Gunn v. McCoy, 554 S.W.3d 645, 658 (Tex. 2018), citing City of Keller v. Wilson, 168 S.W.3d
802, 827 (Tex. 2005). In making this determination, we consider all of the evidence in the light
most favorable to the prevailing party, make every reasonable inference in that party’s favor, and
disregard contrary evidence unless a reasonable fact finder could not. See Bos v. Smith, 556
S.W.3d 293, 300 (Tex. 2018); see also City of Keller, 168 S.W.3d at 827; Shoemaker, 493 S.W.3d
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at 715. Where there is more than a mere scintilla of evidence to support the issuance of a
protective order, we will find the evidence legally sufficient to uphold the order. See, e.g., Seals,
___S.W.3d at ___, 2018 WL 1180742, at *1; Webb, 530 S.W.3d at 802; Shoemaker, 493 S.W.3d
at 715.
In resolving a factual sufficiency challenge, we consider the entire record, and we will set
aside a trial court’s finding only if it is “so against the great weight and preponderance of the
evidence as to be clearly wrong and unjust.” Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996).
When conducting a factual sufficiency review, a court must not substitute its judgment for that of
the fact finder, who “is the sole judge of the credibility of witnesses and the weight to be given to
their testimony.” Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003); see
also Webb, 530 S.W.3d at 802, citing Turner v. KTRK Television, Inc., 38 S.W.3d 103, 134 (Tex.
2000). The fact finder is permitted to resolve inconsistencies in the testimony of any witness,
may draw inferences from the evidence presented, and may choose between conflicting inferences.
Shoemaker, 493 S.W.3d at 715, citing McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986).
An appellate court will not overturn a fact finder’s determination unless only one inference can be
drawn from the evidence and it opposes the fact finder’s resolution of that issue. Id., citing
Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 461 (Tex. 1992); see also Seals, ___ S.W.3d at
____, 2018 WL 1180742, at *1.
Analysis
As explained above, under the current version of the Penal Code, the trial court was entitled
to find that Crisanto was the victim of stalking if it determined that: (1) Lopez, on more than one
occasion and pursuant to the same scheme or course of conduct directed specifically at Crisanto,
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knowingly engaged in conduct that constituted the offense of “harassment” as defined above; (2)
Crisanto subjectively felt harassed, annoyed, alarmed, abused, tormented, embarrassed, or
offended by Lopez’s conduct; and (3) a reasonable person would have had those same feelings.
See Shoemaker, 493 S.W.3d at 718, citing TEX.PENAL CODE ANN. § 42.072. Based on our review
of the record, we conclude that there was both legally and factually sufficient evidence to support
a finding that all three of the elements of the stalking statute were met.
First, we conclude that there was legally sufficient evidence to support a finding that Lopez
knowingly engaged in conduct that constituted the offense of harassment, and that she engaged in
such conduct on more than one occasion, as part of a common scheme or course of conduct directed
at Crisanto. As explained above, under the two relevant provisions in the Penal Code, a person
may commit the offense of harassment by either initiating “obscene” communications, i.e.,
communications describing an “ultimate sex act” in a patently offensive manner, or by sending
repeated electronic communications in a “manner reasonably likely to harass, annoy, alarm, abuse,
torment, embarrass, or offend another.” TEX.PENAL CODE ANN. § 42.07(a)(1)(7). The evidence
presented at the hearing was legally sufficient to support a finding that Lopez engaged in conduct
that constituted the offense of harassment under both of these provisions.
As set forth above, Crisanto testified at the hearing, without contradiction, that Lopez
initiated communications with her, told Crisanto on at least two occasions that she was engaging
in sexual activity with Crisanto’s husband, and repeatedly sent Crisanto graphic photographs
depicting the two of them engaged in various sexual acts. These communications were not only
patently offensive and therefore “obscene” in light of their graphic and descriptive sexual nature,
but Lopez sent the communications primarily through electronic means in a manner that was
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reasonably likely to harass, annoy or embarrass Crisanto given their inappropriate and obviously
upsetting subject matter. Further, given the repeated nature of Lopez’s communications, which
took place over the course of several months, the trial court could have reasonably determined that
Lopez knowingly sent the communications as part of a common scheme or course of conduct
directed at Crisanto to torment or annoy her with proof of her affair with Crisanto’s husband.
Second, we conclude that there was legally sufficient evidence to support a finding that
Crisanto subjectively felt “harassed, annoyed, alarmed, abused, tormented, embarrassed, or
offended” by Lopez’s conduct. Crisanto expressly testified at the hearing that the communications
she received from Lopez caused her to feel “humiliated,” and even necessitated the need for her to
seek psychiatric counseling. And third, we conclude that Crisanto’s testimony was legally
sufficient to support a finding that a reasonable person in Crisanto’s situation, i.e., a person who
was being inundated with graphic photographs of her then-husband engaged in various sexual acts
with another woman, would have had those same feelings.
Accordingly, in reviewing the record under a legal-sufficiency standard, we conclude that
there was more than a scintilla of evidence presented at the hearing to support the trial court’s
finding that Crisanto was the victim of Lopez’s stalking under the current version of the Code, and
that Crisanto was therefore entitled to a Chapter 7A protective order on that basis. Similarly, in
reviewing this same uncontradicted evidence under a factual-sufficiency standard, we conclude
that the trial court’s finding that Crisanto was the victim of stalking was not “so against the great
weight and preponderance of the evidence as to be clearly wrong and unjust.”
Lopez’s Issues One and Two are overruled.
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CONCLUSION
The trial court’s order is affirmed.
August 28, 2019
ANN CRAWFORD McCLURE, Chief Justice
Before McClure, C.J., Rodriguez, and Palafox, JJ.
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