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

ACCEPTED
03-15-00270-CV
6631778
THIRD COURT OF APPEALS
AUSTIN, TEXAS
8/24/2015 10:32:35 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
8/24/2015 10:32:35 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

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

Active 20386168.3
 TABLE OF CONTENTS
Page

Table of Authorities ................................................................................................. iv
Identity of Parties and Counsel .............................................................................. viii
Statement on Citation to the Record ..........................................................................x
Statement Regarding Oral Argument ...................................................................... xi
Statement of the Case.............................................................................................. xii
Issues Presented ..................................................................................................... xiii
Introduction ................................................................................................................1
Statement of Facts ......................................................................................................3
I. The parties initially met in either 1994 or 1995, depending on
who testified and when. ................................................................................3
II. The parties both moved to the Texas Hill Country in 2013..........................4
III. The parties began running into each other at various locations
in the Texas Hill Country in 2014.................................................................5
IV. The evidence shows that the parties disagree as to when and
where they encountered each other. ..............................................................6
Summary of Argument.............................................................................................14
Argument..................................................................................................................16
I. Assuming the State properly requested a stalking protective
order, the interaction between the applicable civil and
criminal statutes required the State to prove the criminal
offense of stalking occurred. .......................................................................16
II. The evidence was legally and factually insufficient to show
Hal was the victim of stalking.....................................................................20
A. There is insufficient evidence to conclude that Suzanna
knew her alleged conduct would result in Hal’s fear for
his life. ................................................................................................. 22
B. There is insufficient evidence that Hal regarded
Suzanna’s alleged warning to him—“[M]ess with me and
you will be sorry”—as threatening bodily injury or death.................. 25
C. There is insufficient evidence that any reasonable person
would view Suzanna’s presence, especially with camera

Active 20386168.3 ii
 and recording device, as a “scheme” of threatening
conduct directed “specifically” towards Hal. ...................................... 28
III. As applied to Suzanna, the statutory scheme at issue
unconstitutionally criminalizes protected speech. ......................................32
IV. The trial court erred in a number of discretionary rulings,
which compounded, led to an unfair hearing and resulted in
this restrictive order. ...................................................................................36
A. The trial court erred in granting a protective order based
on false testimony in violation of Suzanna’s due process
rights. ...................................................................................................36
B. The trial court further erred in granting relief—
specifically, an order with a lifetime duration—that was
not requested in the application for protective order. .........................42
C. The trial court erred in excluding testimony relevant to
Hal’s allegations. .................................................................................46
D. The trial court erred in concluding that its order was
necessary. ............................................................................................49
Conclusion and Prayer .............................................................................................51
Certificate of Compliance ........................................................................................53
Certificate of Service ...............................................................................................54
Appendix ..................................................................................................................55

Active 20386168.3 iii
 TABLE OF AUTHORITIES

Page(s)
CASES

Allen v. State,
218 S.W.3d 905 (Tex. App.—Beaumont 2007, no pet.) .................................... 23

City of Keller v. Wilson,
168 S.W.3d 802 (Tex. 2005) .............................................................................. 20

Cohen v. California,
403 U.S. 15 (1971) .............................................................................................. 33

Connell v. Town of Hudson,
733 F. Supp. 465 (D.N.H. 1990)......................................................................... 34

Cunningham v. Parkdale Bank,
660 S.W.2d 810 (Tex.1983)................................................................................ 42

Daniels v. Funes,
03-10-00317-CV, 2011 WL 2437692 (Tex. App.—Austin June 17, 2011,
pet. denied) ....................................................................................................20, 21

Ex Parte Chabot,
300 S.W.3d 768 (Tex. Crim. App. 2009) ........................................................... 37

Ex Parte Chavez,
371 S.W.3d 200 (Tex. Crim. App. 2012) ........................................................... 37

Ex parte Ghahremani,
332 S.W.3d 470 (Tex. Crim. App. 2011) ........................................................... 37

Ex parte Thompson,
442 S.W.3d 325 (Tex. Crim. App. 2014) ........................................................... 34

Finley v. Finley,
02-11-00045-CV, 2015 WL 294012 (Tex. App.—Fort Worth Jan. 22,
2015, no pet.) ...................................................................................................... 36

Franklin v. Benton-Elam,
06-13-00126-CV, 2014 WL 1722165 (Tex. App.—Texarkana Apr. 30,
2014, no pet.) ..............................................................................24, 25, 26, 28, 29

Active 20386168.3 iv
Garcia v. State,
212 S.W.3d 877 (Tex. App.—Austin 2006, no pet.) .......................................... 33

Gitlow v. New York,
268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138 (1925)............................................. 33

Godfrey v. Godfrey,
03-07-00220-CV, 2008 WL 3166328 (Tex. App.—Austin Aug. 8, 2008,
no pet.) ................................................................................................................ 21

Hunt v. State ex rel. K.C.,
03-11-00352-CV, 2012 WL 3793283 (Tex. App.—Austin Aug. 31, 2012,
no pet.) ................................................................................................................ 37

In re Salgado,
53 S.W.3d 752 (Tex. App.—El Paso 2001, orig. proceeding) ........................... 36

In re Wean,
03-10-00383-CV, 2010 WL 3431708 (Tex. App.—Austin Aug. 31, 2010,
no pet.) ................................................................................................................ 51

James v. Hubbard,
21 S.W.3d 558 (Tex. App.—San Antonio 2000, no pet.) .................................. 36

Long v. State,
931 S.W.2d 285 (Tex. Crim. App. 1996) ...............................................17, 33, 35

McGowan v. State,
375 S.W.3d 585 (Tex. App.—Houston [14th Dist.] 2012, pet. ref d) ................ 22

Molett v. State,
05-08-00728-CR, 2009 WL 824761 (Tex. App.—Dallas Mar. 31, 2009,
pet. ref’d)............................................................................................................. 44

Moreno v. Moore,
897 S.W.2d 439 (Tex. App.—Corpus Christi 1995, no writ) ......................42, 43

Ortiz v. Jones,
917 S.W.2d 770 (Tex. 1996) .............................................................................. 21

Red Lion Broadcasting Co. v. F.C.C.,
395 U.S. 367 (1969) ............................................................................................ 33

Active 20386168.3 v
Sanders v. State,
PD-0849-11, 2012 WL 1142360 (Tex. Crim. App. Apr. 4, 2012) ..................... 22

Scott v. State,
322 S.W.3d 662 (Tex. Crim. App. 2010) ........................................................... 34

State v. Hanson,
793 S.W.2d 270 (Tex. App.—Waco 1990, no writ)........................................... 33

Teague v. State,
06-14-00053-CR, 2015 WL 2236642 (Tex. App.—Texarkana May 13,
2015, no. pet. h.) ................................................................................................. 23

Teel v. Shifflett,
309 S.W.3d 597 (Tex. App.—Houston [14th Dist.] 2010, pet. denied) ............. 42

Uniroyal Goodrich Tire Co. v. Martinez,
977 S.W.2d 328 (Tex. 1998) .............................................................................. 20

Wilson v. State,
448 S.W.3d 418 .................................................................................................. 34

STATUTES
Chapter 85 of the Texas Family Code ...............................................................16, 43

Tenn. Code Ann. § 36-3-605 ..................................................................................... 7

Tenn. Code Ann. § 39-17-315 ................................................................................... 7

Tex. Crim. Proc. Code §7A .....................................................................1, 16, 42, 46

Tex. Crim. Proc. Code §7A.01(a)(1)(2).............................................................16, 17

Tex. Crim. Proc. Code §7A.03 ................................................................................ 45

Tex. Crim. Proc. Code § 38.46 ................................................................................ 47

Tex. Fam. Code Ann. § 82.008 ................................................................................ 38

Tex. Fam. Code §71.001 et seq................................................................................ 16

Tex. Fam. Code § 71.004(1) .................................................................................... 44

Active 20386168.3 vi
Tex. Fam. Code §71.0021(b) ................................................................................... 44

Tex. Fam. Code § 85.001 .............................................................................16, 43, 44

Tex. Fam. Code §85.021 .......................................................................................... 45

Tex. Fam. Code §85.025(a)(1) ................................................................................. 45

Tex. Pen. Code Ann. § 22.01 ................................................................................... 44

Tex. Pen. Code §25.07 ............................................................................................. 32

Tex. Pen. Code §42.07(a)(2) .................................................................................... 18

Tex. Pen. Code § 42.072 ..............................................................1, 14, 19, 20, 22, 34

OTHER AUTHORITIES
Senate Bill 82 Bill Analysis Acts 2011, 82nd Leg., ch. 591 (S.B. 82), § 3............. 47

Tex. R. App. P. 43.2(b) ............................................................................................ 51

Tex. R. Civ. P. 301 ................................................................................................... 42

U.S. Const. amend. I ................................................................................................ 32

Active 20386168.3 vii
 NO. 03-15-00270-CV
__________________________________________________________________

IN THE THIRD COURT OF APPEALS
AUSTIN, TEXAS
__________________________________________________________________

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

IDENTITY OF PARTIES AND COUNSEL

Pursuant to Texas Rule of Appellate Procedure 38.1(a), Appellant

Suzanna Eckchum provides this list of all parties to the trial court’s judgment and

the names and addresses of all trial and appellate counsel in Eckchum v. The State

of Texas for the Protection of Hal Ketchum, No. 03-15-00270-CV on Appeal from

the County Court at Law #2, Comal County, Texas, Cause No. C-2014-1690C, the

Honorable Charles A. Stephens, Judge Presiding:

Appellant: Appellee:

Suzanna Eckchum The State of Texas for the Protection of Hal
Ketchum

Active 20386168.3 viii
Counsel for Appellant in this Court: Counsel for Appellee in this Court:

Mysha Lubke Office of Jennifer A. Tharp
Baker Botts L.L.P. Comal County Criminal District Attorney
98 San Jacinto Blvd., Suite 1500 150 N. Seguin, Suite 307
Austin, Texas 78701 New Braunfels, Texas 78130

Counsel for Appellant below: Counsel for Appellee below:

Lynne Berry Morris Nick Robinson
P.O. Box 1343 Office of Jennifer A. Tharp,
Wimberley, Texas 78676 Comal County Criminal District Attorney
150 N. Seguin, Suite 307
New Braunfels, Texas 78130

Active 20386168.3 ix
 STATEMENT ON CITATION TO THE RECORD

The record on appeal consists of a four-volume Amended Reporter’s Record

filed in July 2015 (cited as volume number, the abbreviation “RR,” followed by the

page number, e.g. 2RR103); a one-volume Clerk’s Record filed in February 2015

(cited as “ICR,” followed by page number); a one-volume Supplemental Clerk’s

Record filed in March 2015 (cited as SCR, followed by page number); a one-

volume “Third Supplemental Clerk’s Record” filed in May 2015 (cited as 3SCR,

followed by page number); a one-volume “4th Supplemental Clerk’s Record”

(cited as 4SCR, followed by page number); a Second Supplemental Reporter’s

Record (cited as 2SRR, followed by page number); and an anticipated additional

supplemental reporter’s record which has yet to be properly filed with the clerk of

the court. In accordance with Tex. R. App. P. 34.6, Appellant made multiple

requests for this anticipated supplemental reporter’s record that would include

additional proceedings omitted from the Second Supplemental Reporter’s Record

at the motion for new trial hearing. 4SCR4-33. This supplemental reporter’s

record is forthcoming and has not been cited herein.

Active 20386168.3 x
 STATEMENT REGARDING ORAL ARGUMENT

This case involves the constitutionality and interpretation of criminal statutes

under which a civil protective order was entered, which prohibits Appellant from

exercising her First Amendment rights for the rest of her lifetime. Because of the

complexity inherent in parsing the statutory language at issue here, and because of

the permanent effects on Appellant of the trial court’s interpretation of relevant

statutes, Appellant believes the Court will benefit from oral argument. Further, the

facts of this case are unusual, and the Court would benefit from an explanation of

the factual effect of the improvidently granted protective order. Additionally, this

case is being brought after Appellant qualified for pro bono appellate

representation by a volunteer attorney through the Third Court of Appeals Pro

Bono Program. For all of these reasons, Appellant requests oral argument.

Active 20386168.3 xi
 STATEMENT OF THE CASE

Nature of the Case: The State of Texas for the Protection of Hal Ketchum
filed an application for a family violence protective
order, alleging that Appellant, with no familial or
dating relationship to Hal, had been subject to a prior
restraining order, stalked Hal over a 16-year period,
and committed violence against him.

Trial Court: County Court at Law #2, Comal County, Texas, Judge
Charles A. Stephens Presiding in Cause No. C2014-
1690C

Course of Proceedings The State’s application for a family violence protective
and Trial Court’s order resulted in a Temporary Ex Parte Protective
Disposition: Order, a Stalking Protective Order, and an Amended
Stalking Protective Order. The trial court denied
Appellant’s motion for a new trial.

Appellate Jurisdiction: The Court has jurisdiction. Appellant timely filed a
notice of appeal, ICR24, after the trial court signed the
Stalking Protective Order, ICR18-21, and Amended
Stalking Protective Order 3SCR7-9. Appeal was
perfected under Tex. R. App. P. 26.1.

Active 20386168.3 xii
 ISSUES PRESENTED

Rendition Points

1. Is the evidence presented at the protective order hearing legally and factually

sufficient to support the trial court’s entry of the lifetime Amended Stalking

Protective Order?

a. Was there legally and factually sufficient evidence that applicant was the

victim of the criminal offense of stalking perpetrated by Appellant?

b. Was there legally and factually sufficient evidence for the trial court’s

finding that the issued protective orders were necessary and appropriate

for the protection of applicant and his family and household, or did the

trial court abuse its discretion in making that finding?

2. Does the statutory scheme, permitting a civil lifetime protective order under

Tex. Crim. Proc. Code §7A.03 when the court finds “there are reasonable

grounds to believe” the criminal offense of stalking under Tex. Pen. Code §

42.07 has occurred, unconstitutionally infringe upon Suzanna’s First

Amendment rights?

Remand Points

1. Did the trial court abuse its discretion in conducting the due process hearing

before entering this lifetime Amended Stalking Protective Order?

Active 20386168.3 xiii
2. Did the State secure this protective order after knowingly or unknowingly

presenting false testimony in violation of Appellant’s due process?

Modification Points

1. Did the trial court err in crafting the provisions outlined in the Amended

Stalking Protective Order, which results in significant restrictions on

Appellant’s liberties and states that the order “shall continue in full force and

effect until the lifetime of either party?”

Active 20386168.3 xiv
 INTRODUCTION

Based on what local musician and celebrity, Hal Ketchum, described as his

“paranoid” fears, perceived “psychological warfare,” and “instinct” that something

was funny about Appellant Suzanna Eckchum, the State of Texas obtained a civil

“stalking” protective order on his behalf. Hal’s hyperbole resulted in an order

prohibiting Suzanna—who is also a local musician and music journalist—from

going within over half-a-mile of anywhere Hal could be found. More harmful to

Suzanna, the ordered restrictions prevent Suzanna from frequenting music venues

critical to her profession and limits her access to other locations near and around

the small towns where the parties live, Fischer, Texas and Wimberley, Texas.

More harmful yet, the order imposes these restrictions on Suzanna for the rest of

her life.

This civil protective order was requested as a family violence protective

order under the Texas Family Code, but heard and entered under a recently-enacted

criminal statute, Tex. Crim. Proc. Code §7A, which permits a lifetime protective

order if the applicant is the victim of stalking as that criminal offense is defined in

Tex. Pen. Code § 42.072. The trial court erred in granting this protective order for

three main reasons. First this order should be vacated because the evidence is

legally and factually insufficient to support the trial court’s findings that (1) Hal

was the victim of the criminal offense of stalking and (2) the conditions specified

Active 20386168.3 1
in its order were necessary and appropriate for the protection of Hal. Second, the

trial court’s application of these criminal statutes unconstitutionally infringes on

Suzanna’s right to free speech.

Third and finally, the trial court made multiple evidentiary errors during the

protective order hearing, some of which resulted in violations of Suzanna’s due

process rights. In a civil hearing where Suzanna—who was accused of a criminal

offense—has so few of the constitutional protections available to criminal

defendants accused under these same criminal statutes, the trial court erred in

granting this protective order based on testimony shown at trial to be false. The

trial court also erroneously granted relief not requested in the application for

protective order. Finally, the trial court improperly excluded evidence and

argument on Suzanna’s behalf, but relied on evidence not presented at trial. In

sum, the trial court erred in concluding that its order was necessary for Hal’s

protection.

Compounded, these errors resulted in a lifetime civil protective order with

significant restrictions on Suzanna’s liberty that are wholly incongruous with the

scant evidence of criminal stalking mustered by the State. For these reasons, this

Court should vacate this protective order, or in the alternative, remand for a new

hearing and modify the restrictions of this protective order pending re-hearing.

Active 20386168.3 2
 STATEMENT OF FACTS

For decades, Suzanna has worked in the music industry as a journalist,

photojournalist, singer-songwriter, and radio host covering the thriving Central

Texas singer-songwriter scene. 2RR79, 82-86; 114-115; Exs. 3-5. Despite a hip

implant that limits her mobility, she continues to pursue her music-centric career,

which has taken her to influential music capitals from Nashville, Tennessee to

cities in the Texas Hill Country, where she performs at Wimberley’s Cypress

Creek Cafe. 2RR87, 114-115. And for 30 years, Hal Ketchum has been a

musician and describes himself as “very successful.” 2RR11-12.

I. The parties initially met in either 1994 or 1995, depending on who
testified and when.

Suzanna first met Hal in August 1994 when she was working as a staff

writer for a newspaper in Colorado and was assigned to interview Hal, who was

performing at a county fair. 2RR67-68; Ex. 11. Over the course of the next few

years, while pursuing her own music, Suzanna interviewed and photographed

many musicians across the country, including Hal, for newspapers. 2RR68-70, 78;

Exs. 2, 6.

But Hal doesn’t remember it that way. Instead, he characterizes Suzanna as

a fan he had very little recollection of, but to whom he gave an autograph at a

1
At the time Suzanna wrote the articles, her last name was Eckert. See Exs.1-2. After
Suzanna’s divorce and her ex-husband’s marriage to a woman who shared Suzanna’s name, she
chose the professional name that currently uses. 2RR77-78.

Active 20386168.3 3
“meet-and-greet. See 2RR24, 25-27. There, Suzanna’s presence at the back of a

line sent a “little red flag up” in Hal’s mind. Id. He claims that one meet-and-

greet (which Hal alleged occurred in 1995 perhaps—a year after Suzanna’s

interview of Hal was published in 1994) was the only time he ever met her.

2RR24, 27. And since then, Hal claims that Suzanna has stalked and followed him

across the country for 16 years in contravention of a “restraining order”2 he

claimed to have obtained against her in Nashville in 1997 after police stopped her

when he reported her to the police for going through his mailbox. ICR8, 2RR13,

24, 27-28, 30, 101.

II. The parties both moved to the Texas Hill Country in 2013.

Contrary to Hal’s claims, Suzanna had not seen Hal from 1997 until after

she moved to Wimberley from New Braunfels, Texas in 2014. 2RR82-83, 112.

By January 2013 Suzanna was already living in Wimberley and later began

working on a music-centric radio show. 2RR 106-07; 112. Leaving a residence

she shared with a friend, Suzanna moved alone to an RV on Fischer Store Road in

August 2013. 2RR82-86, 112; Exs. 3-5. This road extends about seven miles west

of Suzanna’s residence ending at the Fischer Store Museum and Fischer

Haus/Cantina in Fischer, Texas. 2RR15, 38, 62-63, 89-90. The Fischer

Haus/Cantina is a music venue located near the museum, but is a separate property
2
As discussed in Section IV.A, infra, Hal admitted this “restraining order” was merely a police
report. It was not offered into evidence.

Active 20386168.3 4
with owners different from the owners of the museum. 2RR62-63. There, Hal has

lived on a portion of the property with the same physical address as the Cantina

since October 2013—two months after Suzanna had already moved to Fischer

Store Road. 2RR15, 62-63, 89; ICR8.

Fischer Store Road is the major thoroughfare between the main square of

Wimberley and Fischer, Texas. See 2RR36-37. As such, it is the only way for

Suzanna to go from her rural residence on the road, to conduct work or any

business or errands in Wimberley. Id. It’s also Hal’s preferred route into

Wimberley. See 2RR36-37. Since Suzanna’s RV is halfway between Hal’s

residence and Wimberley, Hal frequently passes by Suzanna’s residence going to

and from town. 2RR36-37.

III. The parties began running into each other at various locations in the
Texas Hill Country in 2014.

With the parties living on the same road and working in the same industry in

the same small town, it is no surprise that their paths eventually crossed again. But

one encounter on January 12, 2014 at a music venue stood out in Suzanna’s

memory. On that day, Hal accosted her, cursing at her with clinched fists and

threatening to kill her. 2RR90-94. While on her phone and walking away from

Gruene Hall, a local music venue, Suzanna heard Hal yell from behind her to “get

off her f---ing phone.” Id. at 92. Standing there with his wife and 17-year-old

daughter, Hal threatened to kill Suzanna, calling her a “f---ing cunt” and a “bitch.”

Active 20386168.3 5
Id. Eventually, Hal’s wife tried to restrain Hal as he blocked Suzanna’s path. Id.

at 92-93. And Hal’s 17-year-old daughter begged Suzanna not to call the police

before running into a nearby store fearing her dad would go to jail. Id. at 90.

When Suzanna was able to pass, she notified an officer at the venue of the incident,

and he later escorted her to her car. Id. at 93. Hal did not confirm or deny this

incident. Id. at 47.

Instead, he and his wife allege a later, uncorroborated confrontation at that

same venue on January 23, 2014. ICR8. There on that date, Hal claims Suzanna

threatened his life by saying “mess with me and you will be sorry.” Id.; 2RR17,

55. And Hal says that one statement—which was conditional because he doesn’t

mess with her, was the only time Suzanna threatened him. 2RR43-44-49-61.

Hal’s other allegations are that Suzanna “intimidates” him and his family, without

ever having uttered any words, just by her presence and photography. Id.

IV. The evidence shows that the parties disagree as to when and where they
encountered each other.

Hal alleged a series of incidents beginning in January 2014 that he felt

constituted stalking that boiled down to “he-said-she-said.” Except, it was what

Hal and his sole witness, his wife of 11-months, said on one hand, compared to

what Suzanna and a number of neutral witnesses and documents (or Hal’s lack

thereof) proved on the other hand:

Active 20386168.3 6
Hal says3: The record supports:
Instinct told him to be wary of Suzanna Hal and Suzanna met a year earlier
from the very first time he laid eyes on when she interviewed him for
her in 1995, standing alone4 in the back newspaper articles which were
of a meet-and-greet line. ICR8; 2RR12, published. 2RR67-70; Exs. 1-2.
25-27
On February 14, 1997, he obtained a Hal never obtained a restraining order
restraining order against Suzanna in against Suzanna. 2RR28. While the
Nashville based on the Tennessee anti- Tennessee stalking criminal offense
stalking statute implemented on his was implemented in 1992, Tenn. Code
behalf. 2RR15, 24, 30; ICR8. The Ann. § 39-17-315, there was no statute
order permitted him to show a picture permitting protective orders for stalking
of Suzanna to the police and tell until 2005—eight years after Hal
authorities not to let her into his shows. claimed to have obtained an order.
2RR14. Tenn. Code Ann. § 36-3-605; 2005
Tennessee Laws Pub. Ch. 381 (S.B.
645), attached as Appendix 1. Prior to
the Amended Order, Suzanna had never
been served with a restraining order.
2RR89.
Hal saw Suzanna only once in 1994. The parties had no contact and did not
2RR31. Suzanna has stalked him for 16 see each other between 1997 and 2014.
years. 2RR14, 19 See 2RR27, 29-30, 43-44, 83.
Suzanna has followed Hal to every city Hal moved to Tennessee in 1991, and
where he moved from Nashville to Suzanna moved in 1995. 2RR79. He
Austin, and finally to the Wimberley- does not remember when he moved
area. ICR8; 2RR15. from Tennessee, 2RR40, or to Austin,
2RR41. But he moved to the
Wimberley-area in October 2013.
ICR8. Suzanna moved to Wimberley
before him—in January 2013.
2RR112-113.

3
For purposes of simplifying this summary, only “Hal” refers to testimony provided by both Hal
and his sole witness, his wife, Andrea.
4
In his affidavit, Hall alleged that Suzanna was in the meet-and-greet line for an autograph “and
that was it.” ICR8. But at trial, Hal appended a story that Suzanna was in line for an autograph
and picture with her young son, who, in later years, Suzanna sent to Hal’s shows as a “little
messenger” to bother Hal. 2RR12, 50-51.

Active 20386168.3 7
Hal says: The record supports:
At Gruene Hall on January 12, 2014, At that location, a shopkeeper
Suzanna “showed up where he was.” witnessed Hal lunging at Suzanna,
ICR8. Nothing else occurred on that cussing, hollering, and screaming at
date. See id.; 2RR46-47. her, while Suzanna calmly walked away
from him and Hal’s wife tried to
restrain him back. (2RR at 71-75). This
could only have happened on January
12, 2014. See 2RR87-89, 95.
At Gruene Hall on January 23, 2014, Suzanna was in the hospital on this
Suzanna jumped out of the bushes, date. In fact, from January 15, 2014 to
2RR16, or from behind cars, 2RR54-55, May 2014, Suzanna was in the hospital,
(depending on whether Hal or his wife a rehabilitation facility, or homebound,
was testifying) at Hal’s family. She recovering from a hip implant—which
then allegedly threatened Hal’s life by would preclude her from “jumping”
telling Hal that if he messed with her, anywhere. 2RR87-89; 113-114. She
he would be sorry, and formed a pistol could not drive or walk during that
with her fingers. 2RR16-17. period. Id.
On 6 occasions from January to May Suzanna was hospitalized for or
2014, Suzanna “showed up” where he rehabilitating from a hip implant from
was. ICR8; 2RR18. January 15 to May 2014. 2RR87-89,
95.
Around April 2014 at Gruene Hall, Suzanna was hospitalized for or
Hal’s wife locked Hal’s 17-year-old rehabilitating from a hip implant from
daughter in a truck to keep Suzanna January 15 to May 2014. 2RR87-89,
away from the daughter. Then, 95.
Suzanna appeared outside the truck.
2RR58-59.
Suzanna follows him on Fischer Store Suzanna and Hal live on the same
Road to and from Wimberley’s road—the road both use to travel from
commercial center. their residences to Wimberley. 2RR36-
37, 65-66.
At a music event, “Wag Fest,” Suzanna Suzanna attended Wag Fest to conduct
“bothered” Hal simply by attending, interviews for the Wimberley Valley
wearing large headphones and talking Radio. 2RR45-46, 90, 97. She wore
into a voice recorder “mimicking” him headphones and spoke into a voice
during his performance. ICR8; 2RR45- recorder to record sound bites for her
46. Hal was “intimidated” by this radio show. Id.
behavior. See id.

Active 20386168.3 8
 In addition to those contradictions, the evidence also showed that Hal’s

affidavit omitted or exaggerated key facts. For example, Hal’s affidavit stated that

Suzanna followed him to Wimberley and lived “blocks away” from his home

which gave the illusion that Suzanna chose to live very near to where he was

already living. See ICR8. Besides the fact that Suzanna moved to Wimberley

months before Hal actually. 2RR112-113; Ex. 5, Hal stated at the hearing that her

residence was “three miles” away, not “blocks away.” ICR8; 2RR15. In reality,

the distance from Hal’s residence to Suzanna’s residence is seven miles. 2RR89.

He also claims that when Suzanna made a shooting motion while instructing him

not to mess with her, his daughter ran away scared, omitting the reason why his

daughter was scared. ICR 8. This omission gave the illusion that his daughter

“was so intimidated and frightened by this woman,” Suzanna. 2RR17. But what

his 17-year-old daughter5 was afraid of was Hal going to jail so much that she did

not want to leave the scene with him. 2RR73, 75. He also claims that in

November 2014, Suzanna sat at the Fischer Store near his residence and took

photos, without stating the subject of the photos. ICR8; 2RR18. The omission

gives the illusion that Suzanna went to Hal’s home to take photos of him, his

family, or his residence. But Hal’s wife acknowledged that Fischer Store is a
5
This daughter, Rose Ketchum, was present at trial, sworn in, and sequestered, but never
testified. 2RR10, 66. Thus, the only testimony of why the daughter was afraid was admitted
with no objection and provided by a neutral, third-party witness—the shopkeeper who managed
the shop in which Hal’s daughter ran during the incident . 2RR73-75.

Active 20386168.3 9
separate property from the property on which the family lives. 2RR62-63.

Suzanna took pictures of the venue itself while interviewing the owner of the

venue—not Hal or his home. 2RR89-90. Finally, he alleged that Suzanna took

pictures of his grandkids and family, but failed to note that any such photos were

taken of the audience at public events, and the children were a part of the audience.

2RR63-65.

In addition to those key omissions, Hal also frequently discredited his own

testimony and affidavit. For instance, Hal testified that Suzanna had

“continuously” harassed him from 1994 to 1997. 2RR29. But moments later, Hal

concedes that he had not seen Suzanna from 1994 to 1997, and thus “really

wouldn’t know” if Suzanna was stalking him then. Id. Also, Hal stated in his

affidavit that he was at Gruene Hall on January 23, 2014 (the date he alleges

Suzanna threatened his life) because he was performing. ICR8. While at the

hearing, he testified that he was there on that date just to have “a couple of beers,”

but was not intoxicated. 2RR16, 50. As another example, Hal described Suzanna

as a fan he met once and whose name he didn’t even know at the time, 2RR25, and

had no recollection of meeting at a newspaper interview. See 2RR27. Nor did he

know her name when he somehow obtained a “restraining order” against her three

years later. 2RR25. But he later testifies that he did know her name and

purportedly knew her young son. 2RR50-51. Finally, Hal claimed that since

Active 20386168.3 10
January 2014, he calendared each date Suzanna followed him because a police

officer to whom he reported the stalking advised him to track the incidents.

2RR47; ICR8. Yet, his affidavit stated that he did not report any “stalking” to any

authorities until December 14, 2014—nearly 11 months after he claims a police

officer told him to keep a calendar, nearly a year after he claims Suzanna

threatened to kill him, and two days before he sought this protective order. ICR8.

Additionally, Hal alleged a number of uncorroborated encounters only supported

by Hal’s own—oftentimes forgetful—testimony.6

Hal’s allegations of “Suzanna following [him and his family] around and

tak[ing] pictures all the time” concluded with his description of an event on

December 14, 2014 where he claims Suzanna attended his event at the VFW “in an

intimating [sic] nature.” ICR8; 2RR44. At trial, he admitted that he was not the

sole performer at the event, and the event was actually that of a local performer—

Eppy the Clown—as a benefit concert. 2RR45-46; 98-99. While Hal alleged

6
For example, at trial, Hal recounted incidents where Suzanna allegedly sent a young boy who
Hal claims was her son to try to get backstage access to Hal’s shows. 2RR50-51. Despite
knowing no dates or locations or how many times this occurred, he insists these things happened.
Id. at 52-53. According to Hal, the next time he claims he saw Ms. Eckchum was when she
appeared on his lawn in 1997 at his home in Nashville, Tennessee. 2RR12-13. From the
moment he met her, he claims she began showing up at his children’s school, following him
around the grocery store, and going through his mailbox in 1997. 2RR13. He saw Suzanna in
Wimberley on December 7, 2014, and claims Suzanna took pictures of his grandkids in June and
of his family in September. ICR8. He asserts that she followed his children at a school
fundraiser and took pictures of his grandchildren. 2RR14. On December 7, 2014, he saw
Suzanna in Wimberley following his daughter and her friends. 2RR18. He also saw her at the
Ace Hardware store in town, and presumed Suzanna followed him there. 2RR58, 65.

Active 20386168.3 11
Suzanna was there to “intimate” [sic] him, ICR8, the record shows that Suzanna

attended the event to invite other musicians onto her radio show and also to take

photographs for The Wimberley View, a local newspaper in which her photos were

published the next day. 2RR99, 106-07; Ex. 6. On the day following this

“incident,” and nearly a year after he claims Suzanna threatened to kill him by

forming a gun with her hand and telling him not to “mess” with her, Hal claims to

have reported Suzanna’s behavior to the Comal County Sherriff’s office, “but

do[es] not have the case number.” ICR8.

The State then filed an application for a family violence protective order

requesting Suzanna be prohibited from “removing children from Hal’s possession”

and “transferring, encumbering or otherwise disposing of any property owned or

leased by Applicant and Respondent,” as well as requesting that “temporary

support and visitation be set,” under the Texas Family Code. ICR4-7. The court

granted that relief, and set a due process hearing before entry of a permanent order.

Id. at 10-12. At that hearing and based on the thin accusations recounted above,

the State of Texas convinced the trial court that Hal’s life had been threatened and

he was “frightened,” scared, and afraid a bullet would enter his home. ICR8;

2RR15, 19. The trial court granted the protective order (and removed the family

violence provisions) finding that (1) Hal was the victim of stalking and (2) the

“Stalking Protective Order” was necessary and appropriate to prevent or reduce the

Active 20386168.3 12
likelihood of future harm to Hal or a member of his family or household. ICR18-

20. Aware of the small size of Wimberley, the court ruled that Suzanna should (1)

stay 1,000 yards (over half-a-mile) from Hal and specified locations in

Wimberley;7 (2) not engage in any conduct that is reasonably likely to “harass,

annoy, harm, abuse, torment, or embarrass” Hal or his family; (3) “look in the

newspaper” before going to any music venue to ensure that she is not there three

hours before or three hours after Hal is performing; and (4) essentially leave any

location where she sees Hal. See 2RR117-121. The trial court expressed that it

based this order on the evidence it heard about Suzanna “showing up, including

other cities and places, where [Hal] is.” 2RR121. After a hearing in which

Suzanna’s motion for new trial was denied, the court amended the order to

decrease the stay-away provisions from 1,000 yards to 1,000 feet. 3SCR7-9. Both

orders “shall continue in full force and effect until the lifetime of either party.”

ICR20; 3SCR9.

7
After a hearing on Suzanna’s motion for new trial, the trial court reduced the distances in the
stay-away provisions to 1,000 feet. Appendices 2,4. As discussed in Sections III and IV.D infra,
both distances significantly limit Suzanna’s ability to live and conduct business in Wimberley.
Appendix 3 is a map used for explanation only and that is not to scale or an accurate, legal
representation of the physical property. It shows an example of a location prohibited in the
protective order and other locations encompassed by the 1,000-foot radius specified in the stay-
away provisions.

Active 20386168.3 13
 SUMMARY OF ARGUMENT

The trial court improvidently entered this lifetime stalking protective

order. The State’s evidence showed that two residents of the same small town,

both in the music industry, frequented the same music venues and events, and that

“bothered” Hal. But none of that constitutes the offense of stalking, which based

on the alleged facts, would require more than one knowing threat of bodily injury

or death, along with objective and subjective elements of the accuser’s fear. See

Tex. Pen. Code § 42.072. At most, Hal alleged that Suzanna warned him not to

“mess with her” and that that warning made Hal feel threatened in an incident the

evidence shows could not have possibly occurred as Hal alleged. Whether or not

Hal subjectively experienced “paranoid” fear when he saw Suzanna around town,

under the stalking statute’s objective prong, a reasonable person would not have

feared death or bodily injury when Suzanna showed up to music venues with a

camera, headphones, and a voice recorder, for example. In short, the evidence was

not legally and factually sufficient to support entry of a stalking protective order—

that endures for the rest of Suzanna’s life—under the relevant statutory framework.

The Court should vacate this order for this reason alone.

Additionally, the relevant statutory framework is unconstitutional as

applied to Suzanna as it prohibits protected speech under the First Amendment for

Active 20386168.3 14
the rest of Suzanna’s life. For this reason as well, the Court should vacate this

order.

Finally, the trial court made a number of errors in conducting the due

process hearing required before entry of a protective order. First, in the application

for a protective order and at the due process hearing, the State relied on false

testimony which deprived Suzanna of due process required by law. Then, the trial

court granted relief that was not requested by the State by entering a stalking

protective order when the State applied for a family violence protective order.

Further, at the due process hearing, the court excluded relevant testimony the

legislature explicitly stated should be admissible. Finally, in ruling, the trial court

erred in relying on evidence not presented. These errors resulted in a due process

hearing that provided minimal fairness to Suzanna who was accused of committing

a criminal offense, and as a result, is now subject to a civil order (enforceable by

jail time) that restricts her liberty for the rest of her life.

For these reasons, this Court should vacate this improvidently granted

Amended Stalking Protective Order (“Amended Order”). Alternatively, this Court

should remand for a new due process hearing and modify the restrictions of the

Amended Order pending a new hearing.

Active 20386168.3 15
 ARGUMENT

I. Assuming the State properly requested a stalking protective order, the
interaction between the applicable civil and criminal statutes required
the State to prove the criminal offense of stalking occurred.

Despite the State alleging no family or dating relationship between the

parties, it requested this stalking protective order under Chapter 85 of the Texas

Family Code. ICR4-7; 2RR7. Tex. Fam. Code § 85.001 permits issuance of a

protective order if family violence has occurred and the parties are in a family or

dating relationship. At trial (and for the first time), the State requested that the

court issue a stalking protective order, which is not available under the Family

Code, but is available under Tex. Crim. Proc. Code §7A. 2CR9; see infra Section

IV.B. This chapter of the Code of Criminal Procedure is a recently-enacted, bare

bones scheme for protective orders that relies on the Family Code to fill in

administrative gaps, such as fee payment, notice, and time for hearings. See Tex.

Crim. Proc. Code §7A; Tex. Fam. Code §71.001 et seq. It also relies on the Penal

Code for descriptions of the unlawful conduct warranting a protective order. Tex.

Crim. Proc. Code §7A.01(a)(1)(2).

The relevant provisions permit the State to file an application for a stalking

protective order, without regard to the relationship of the parties, on behalf of a

person who is the victim of an offense under specified Penal Code provisions,

including the criminal offense of stalking. Id. at 7A.01. “At the close of a hearing

Active 20386168.3 16
on an application for a protective order under this chapter, the court shall find

whether there are reasonable grounds to believe that the applicant is the victim

of...stalking” and issue a protective order with that finding. Id. at § 7A.03.

When issuing a protective order under this chapter, the court may order the

offender to take any action the court determines is “necessary or appropriate to

prevent or reduce the likelihood of future harm to the applicant or a member of the

applicant’s family or household.” Id. at §7A.05(a)(1). The chapter also permits

the trial court to enter a protective order with “stay-away” provisions for

residences, work addresses, and schools, as well as provisions prohibiting

possession of a firearm. Id. Finally, the protective order can include a provision

prohibiting the accused from “engaging in conduct directed specifically toward the

applicant [or his family or household], including following the person, that is

reasonably likely to harass, annoy, alarm, abuse, torment, or embarrass the

person.” Id. at § 7A.05(a)(2)(C).

This last permissive provision was once itself the criminal offense of

stalking before it was held unconstitutional and revised multiple times to attempt

cure the unconstitutional vagueness. Long v. State, 931 S.W.2d 285, 288 (Tex.

Crim. App. 1996) (holding an earlier version of the stalking statute making it a

crime to “engage[] in conduct directed specifically toward the other person,

including following that person, that is reasonably likely to harass, annoy, alarm,

Active 20386168.3 17
abuse, torment, or embarrass that person” to be unconstitutionally vague on its

face). The current revised stalking criminal offense provides:

(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 42.07,8 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

8
One can also commit the crime of stalking by engaging in conduct that “constitutes an offense
under Section 42.07,” which is the crime of harassment. As the State never alleged Harassment
in its Family Code application for a protective order, to the extent the State still asserts that
Harassment occurred, the challenges to legal and factual sufficiency outlined in this brief apply
to the criminal offense of harassment as well. This is because the only provision of the
Harassment statute remotely applicable involves conduct that “threatens, in a manner reasonably
likely to alarm the person receiving the threat, to inflict bodily injury on the person or to commit
a felony against the person, a member o the person’s family or household, or the person’s
property.” See Tex. Pen. Code §42.07(a)(2). The major difference in this case is that
Harassment has a higher mental state of “intent to harass, annoy, alarm, abuse, torment, or
embarrass” instead of knowledge that conduct would result in fear or the litany of emotional
states in the Stalking statute. See id. at § 42.07(a)(1).

Active 20386168.3 18
 (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. Pen. Code Ann. § 42.072 (emphasis added).

In other words, to “stalk” Hal, Suzanna needed to do any conduct in which a

person could possibly engage that she knew to a reasonable certainty would result

in Hal believing she threatened bodily injury, death, or a property offense. See id.;

see also id. §6.03 (“A person acts knowingly, or with knowledge, with respect to a

result of his conduct when he is aware that his conduct is reasonably certain to

Active 20386168.3 19
cause the result.”). Additionally, that conduct should have resulted in Hal’s

subjective fear of the threat, or, a mere feeling of any one of the litany of low-

intensity emotional states listed in the statute. See id. at §42.072 (listing harassed,

annoyed, alarmed, abused, tormented, embarrassed, and offended as emotional

states an accused could feel as a result of any conduct). Finally, Hal’s fear, or, his

feeling of any one of the listed emotions needed to be reasonable under an

objective standard. See id. And to be entitled to a protective order for stalking, the

State needed to prove that stalking occurred.

II. The evidence was legally and factually insufficient to show Hal was the
victim of stalking.

“A legal-sufficiency challenge to a protective order, like any other legal-

sufficiency challenge, may only be sustained when (1) the record discloses a

complete absence of evidence of a vital fact, (2) the court is barred by rules of law

or evidence from giving weight to the only evidence offered to prove a vital fact,

(3) the evidence offered to prove a vital fact is no more than a mere scintilla, or (4)

the evidence establishes conclusively the opposite of a vital fact.” Daniels v.

Funes, 03-10-00317-CV, 2011 WL 2437692, at *6 (Tex. App.—Austin June 17,

2011, pet. denied) (citing Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d

328, 334 (Tex. 1998). The Court must consider evidence favorable to the finding

only if a reasonable fact-finder could, and disregard evidence contrary to the

finding unless a reasonable fact-finder could not. City of Keller v. Wilson, 168

Active 20386168.3 20
S.W.3d 802, 827 (Tex. 2005). “The ultimate test for legal sufficiency is whether

the evidence at trial would enable reasonable and fair-minded people to make the

finding under review.” Godfrey v. Godfrey, 03-07-00220-CV, 2008 WL 3166328,

at *1 (Tex. App.—Austin Aug. 8, 2008, no pet.).

In contrast, reviewing a finding for factual sufficiency requires the Court to

weigh all of the evidence in the record and set aside the challenged finding if it is

so contrary to the overwhelming weight and preponderance of the evidence that it

is clearly wrong and manifestly unjust. Daniels, 2011 WL 2437692, at *6 (citing

Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996)).

This record establishes that Hal was not the victim of stalking because no

reasonable and fair-minded person would find that Suzanna knew that her conduct

would cause Hal to fear death or bodily injury. Nor would any reasonable person

conclude that Hal was threatened by the only purported evidence of threatening

conduct the State offered. Finally, even if there was a threat, there is a complete

absence of evidence of the vital fact that threatening conduct occurred on more

than one occasion and pursuant to a scheme or course of conduct. Thus, the trial

court’s finding that stalking occurred was contrary to the great weight of the

evidence in the record, and this stalking protective order should be vacated.

Active 20386168.3 21
 A. There is insufficient evidence to conclude that Suzanna knew her
alleged conduct would result in Hal’s fear for his life.

Suzanna had no way to know that conducting her business in

Wimberley, attending music venues, photographing and interviewing for

newspapers and magazines, and making recordings for radio would result in Hal’s

fear of bodily injury or death. The criminal offense of stalking requires that the

alleged stalker know the circumstances of her conduct as well as that her conduct

would result in the alleged victim regarding the conduct as threatening death or

bodily injury. See Tex. Pen. Code § 47.072 (defining offense as “knowingly

engag[ing] in conduct that… [she] knows or reasonably should know the other

person will regard as threatening”). A person has the requisite mental state when

he “acts knowingly, or with knowledge, with respect to the nature of his

conducts…[or] knowingly, or with knowledge, with respect to a result of his

conduct when he is aware that his conduct is reasonably certain to cause the result.

Id. at § 6.03(b).

“Knowledge...depends on what information the defendant possesses.”

Sanders v. State, PD-0849-11, 2012 WL 1142360, at *7 (Tex. Crim. App. Apr. 4,

2012). Cases applying the stalking criminal statute have held that the knowledge

element was met where the accused was warned by friends and law enforcement

about his conduct. See, e.g., McGowan v. State, 375 S.W.3d 585, 591 (Tex.

Active 20386168.3 22
App.—Houston [14th Dist.] 2012, pet. ref d) (pointing to defendant’s decision to

ignore warnings from stepbrother and law enforcement officers as evidence of

knowledge that stalking victim would regard his conduct as threatening bodily

injury or death); Allen v. State, 218 S.W.3d 905, 909 (Tex. App.—Beaumont 2007,

no pet.) (holding that jury could rationally conclude defendant's continued

behaviors after a police warning to stop revealed a subjective awareness that he

was causing the complainant fear); Teague v. State, 06-14-00053-CR, 2015 WL

2236642, at *12 (Tex. App.—Texarkana May 13, 2015, no. pet. h.) (holding that

evidence that the complainant told the accused and the police, who in turn told the

accused, that she was afraid of him supported the knowledge element of the

stalking offense).

But this record is wholly devoid of evidence of what information

Suzanna possessed. And the record does not show that Suzanna knew Hal or a

more reasonable person would regard her conduct as threatening death or bodily

injury. At most, Suzanna understood from others in her industry that Hal told

others he had “ill feelings” toward her. 2RR98, 102. Hal never communicated to

Suzanna that he felt threatened by her. See 2RR102. At some point, Suzanna

learned that Hal’s publishing company, run by Hal’s then-wife, accused Suzanna

of stalking after Suzanna pitched a photobook to his management company.

2RR30, 81-82. That fact was confirmed to Suzanna when the police stopped her

Active 20386168.3 23
traveling by foot in her neighborhood and showed her a copy the contents of her

proposed book which she had not given the police. See 2RR82-83, 14, 30. No

witness testified that Suzanna had any knowledge that Hal felt threatened when he

saw her at music venues.

Further, there was no indication from Suzanna’s prior encounters with

Hal that she knew Hal thought she would physically harm him. This is especially

so considering that from when the parties met in 1994 to present, Suzanna has

never physically harmed Hal or his family. See Franklin v. Benton-Elam,

06-13-00126-CV, 2014 WL 1722165, at *10 (Tex. App.—Texarkana Apr. 30,

2014, no pet.) (denying a stalking protective order because the respondent did not

know and should not have known that the accuser would regard her conduct as

threatening “especially since no physical harm had come to [the accuser] over the

years”). And over the course of the 16 years Hal alleges Suzanna stalked him, Hal

admits that she never made any threats against him other than the one he alleges

occurred at Gruene Hall on a date Suzanna was incapacitated. 2RR43. And even

that incident, where Hal alleges Suzanna threatened to kill him, would indicate to

Suzanna and a reasonable person that Hal was not in fear as he pursued Suzanna

aggressively while hurling insults at her. See 2RR16-17, 71-74.

Active 20386168.3 24
 In short, nothing Suzanna could have said or done indicated to a

reasonable person that she knew Hal would reasonably experience fear of a threat

from her conduct. Thus, the State’s evidence of stalking was neither legally or

factually sufficient to support the entry of this protective order.

B. There is insufficient evidence that Hal regarded Suzanna’s alleged
warning to him—“[M]ess with me and you will be sorry”—as
threatening bodily injury or death.

There is no legally or factually sufficient evidence of Suzanna threatening

Hal. Hal points to one conditional statement he alleges Suzanna uttered as the

source of his fear of a “drive-by” because his “life has been threatened” and he was

“scared for [his] safety and the safety of [his] family.” ICR8; 2RR19-20.

According to Hal, Suzanna said to him while pointing her finger, allegedly in the

form of a gun: “[M]ess with me and you will be sorry.” See I CR 8; 2RR17.

The only appellate case interpreting the stalking statute in the context of the

lifetime protective order statute denied the application for a protective order due to

a lack of credible evidence of stalking. Franklin, 2014 WL 1722165, at *10.

There, for over three years, the applicant and respondent frequently encountered

each other in the small town in which they both resided, mostly as a result of both

being romantically involved with the same man. Id. at *1. These public

encounters were not cordial and frequently involved name-calling, with the final

encounter order resulting in actual physical violence, leading to the application for

Active 20386168.3 25
a protective order. Id. During that encounter, video evidence showed the applicant

engaged verbally with respondent while applicant exited a Dollar General store as

the respondent entered. Id. at *3. The applicant changed course and went back to

enter the store and further engaged the respondent. See id. While the applicant

claimed that the respondent was the aggressor in a physical altercation and thus

made a credible threat, neutral third-party witness testimony and video evidence

showed the opposite. Id. It was the applicant, who advanced toward the alleged

aggressor before physical violence ensued, while claiming to be in fear. Id. at *3.

The trial court found, and the appellate court affirmed, that such conduct could not

constitute a threat, because no reasonable person would conclude that the

applicant—who walked toward and not away from the respondent during a verbal

altercation—was in fear. See id.

Assuming Suzanna made the alleged warning to Hal during an incident at

Gruene Hall, Hal could not have regarded the conditional statement as life

threatening. Likewise, no reasonable person could conclude that Hal—who

lunged and cursed at Suzanna—feared death or bodily injury. During the incident

Hal alleges, Suzanna exited Gruene Hall and Hal soon followed. 2RR16. She

appeared behind him, and Hal turned to tell her to leave him and his family alone.

Id. Her response was to tell him to leave her alone or he would be sorry. See id.

Active 20386168.3 26
Then he “went off on [Suzanna]” before ultimately leaving with his family. Id. at

17.

These self-serving statements are in direct contradiction to a neutral (and

unwilling) witness who saw the altercation and spoke with Hal’s “frightened”

daughter during the encounter. 2RR71-74. This witness came to trial on her lunch

break from a store near Gruene Hall where she was working the night she

witnessed Hal “hollering and cussing,” “saying ugly things,” and “lunging” at

Suzanna while Hal’s wife tried to pull him back. 2RR71-72. All the while,

Suzanna was calmly walking away with her back to Hal, while Hal continued

following and lunging towards Suzanna. 2RR72. This testimony establishes that

Hal could not have feared Suzanna’s alleged threat because he pursued Suzanna,

and not the other way around.

Further, at most, this “conditional” statement Hal alleges would be a

warning of self-defense by Suzanna under the circumstances described by the

neutral witness. The conditional phrase confirms that Suzanna promises to do

nothing if Hal does not mess with her. And Hal agrees that it was conditional and

claims that he does not “mess” with Suzanna. 2RR48-49. Therefore, even if one

believes that Suzanna made this statement and the accompanying gesture to Hal

(although the evidence showed she could not possibly have been present on the day

Hal claims she made the statement) there is no legally or factually sufficient

Active 20386168.3 27
evidence that Hal regarded the conduct as threatening. Further, even if this

conduct was threatening, it at most constitutes one threat, when the stalking statute

requires threatening conduct on more than one occasion. Because Hal alleged and

proved no threatening conduct by Suzanna, the Court should vacate this protective

order.

C. There is insufficient evidence that any reasonable person would
view Suzanna’s presence, especially with camera and recording
device, as a “scheme” of threatening conduct directed
“specifically” towards Hal.

Other than the non-threat discussed above, Hal alleged a series of “stalking”

incidents where Hal saw Suzanna at public events and public places taking

pictures, making recordings, or conducting her business. No reasonable person

would view that conduct as a scheme or course of conduct directed specifically at

Hal, knowing that the parties work in the same industry and live in the same small

town where there was only one grocery store and one hardware store, facts of

which the trial court was aware. See 2RR120. To the extent the trial court

construed these chance encounters as credible evidence of threatening conduct

directed specifically at Hal, the trial court erred.

The stalking offense requires that the threatening conduct be “pursuant to

the same scheme or course of conduct that is directed specifically at another

person.” Tex. Pen. Code §42.072. In Franklin, the appellate court upheld the

denial of a stalking protective order because there was no credible evidence of

Active 20386168.3 28
purposeful conduct directed at the complainant. See 2014 WL 1722165, at *9.

There the two parties lived in a small town, and “the two happened to run into each

other at various locations within their shared community over the course of three

and one-half years.” Id. The trial court “characterized the meetings established by

credible evidence as chance encounters rather than conduct occurring pursuant to

the same scheme or course of conduct.” Id.

Likewise, the record disproves that Suzanna’s presence at locations in

Wimberley was directed specifically toward Hal or his family, and instead was the

result of the two parties being acquainted in the same industry and living in the

same small town. This is so despite Hal’s hyperbolic efforts to suggest that

Suzanna “followed” him and “showed up” at his shows. ICR8. For example, Hal

claims Suzanna attended his event at the VFW “in an intimating [sic] nature.”

ICR8; 2RR44. The characterization of the event as his own suggested that Hal was

that “main event,” and if anyone attended, it was to see him. But at trial, he

admitted that he was not the sole performer at the event, and the event was actually

that of a local performer—Eppy the Clown—as a benefit concert. 2RR45-46; 98-

99. While Hal alleged Suzanna was there to “intimate” [sic] him, ICR8, the record

shows that Suzanna attended the event, along with her radio producer, to invite

other musicians onto her radio show and also to take photographs for The

Wimberley View, a local newspaper in which her photos were published the next

Active 20386168.3 29
day. 2RR99, 106-07; Ex. 6. This producer, who is also the president and acting

general manager of the Wimberley Valley Radio, attended the event with Suzanna

and testified that it was reasonable for Suzanna to be attending events to invite

guests to her show. 2RR108. To interpret that behavior as stalking was what the

witness found alarming. 2RR108-09.

Nor was Suzanna at Gruene Hall to follow or bother Hal. Both parties agree

that they saw each other at Gruene Hall in January 2014, though they dispute the

date. Id.; 2RR46-47, 87-88. In his affidavit, Hal explained his presence at that

venue by stating that he had a concert to perform there on January 23rd. ICR8.

Such an explanation suggests that if Suzanna was also there on that date (which

she denies), she was there because she knew Hal would be there and to attend

Hal’s concert. See id. But at the hearing, Hal recalled that in fact, he was not at

Gruene Hall to perform and did not have a concert that night. 2RR16. Instead, he

was there to have a couple of beers (but maintains he was not intoxicated) after

having celebrated a friend’s birthday at a nearby restaurant. 2RR16, 50. This

latter version of events suggests that if Hal and Suzanna were both at Gruene Hall

on the date Hal alleges, Suzanna had no way to expect Hal to be there as well.

Thus, the “life-threatening” incident Hal alleged on January 23rd was a result of

two people in the same industry in the same small town being at the same place at

Active 20386168.3 30
the same time, and not a result of Suzanna “showing up” at places where Hal

performed.

As another example of Suzanna’s conduct not being “specifically directed”

at Hal or anyone else, the record shows that Suzanna attended an event called

“Wag Fest” for reasons wholly unrelated to Hal. Suzanna does not deny being at

the event or seeing Hal there, but she does deny that her reason for being there was

Hal. 2RR90, 97. She attended with headphones and voice recorder in hand to

make recordings and to interview other musicians for her radio show. Id. Yet, Hal

claimed that she attended the event in an “intimidating” nature so much so that

audience members around her began to leave “because they felt so strangely

intimidated by this behavior.” 2RR44-45. He also concluded that by sitting in the

front row wearing her headphones and speaking into her voice recorder and

laughing at a joke he made on stage (to which, he himself was laughing), she was

“mimicking” him. 2RR44-45. Along with knowing the reason audience members

arose from their seats, Hal also purported to know what Suzanna could hear while

wearing her headphones, though he was wearing none.

Such thin accusations are not credible evidence that Suzanna directed a

scheme or course of conduct specifically at Hal. . he feared death or bodily injury.

At most, Hal alleged that Suzanna’s “presence” and her “taking pictures” bothered

him—not that she directed that conduct at him to threaten him. There is no

Active 20386168.3 31
evidence that Suzanna directed her conduct specifically at Hal or his family to

support a claim of stalking. Stalking did not occur, and the State did not prove it.

Suzanna never threatened Hal or his family. 2RR99-100. She never made any gun

gestures with her hand. Id. She has specifically directed no conduct at Hal. Id.

She is not stalking Hal or his family. Id. For these reasons, this Court should

vacate the Amended Stalking Protective Order which is not supported by legally or

factually sufficient evidence.

III. As applied to Suzanna, the statutory scheme at issue unconstitutionally
criminalizes protected speech.

Additionally, the provisions of the stalking and protective order statutes are

unconstitutional as applied to Suzanna to the extent they permit the trial court to

enter a stalking protective order prohibiting Suzanna “from taking photos or

images of applicant, applicant’s children, spouse, grandchildren, or anyone in

applicant’s household.” 3SCR8. Such provisions subject Suzanna to criminal

liability under Tex. Pen. Code §25.079 and jail time, for example, should an

audience member captured in one of her published photographs turn out to be a

member of Hal’s family or household. See 3SCR9. Moreover, Suzanna will be

subject to such restrictions for the remainder of her or Hal’s life.

9
Tex. Pen. Code §25.07 makes it a criminal offense to violate specified provisions of a
protective order.

Active 20386168.3 32
 The trial court’s interpretation of the stalking statute to make unlawful

and prohibit Suzanna from taking photographs at public events and public places

improperly criminalizes protected speech. That the Constitution prohibits any law

abridging freedom of speech is not debatable. U.S. Const. amend. I (“Congress

shall make no law ... abridging the freedom of speech.”). This guarantee of free

speech, which was made applicable to the various states by the Due Process Clause

of the Fourteenth Amendment, Gitlow v. New York, 268 U.S. 652, 666, 45 S.Ct.

625, 69 L.Ed. 1138 (1925), generally protects the free communication and receipt

of ideas, opinions, and information. Red Lion Broadcasting Co. v. F.C.C., 395

U.S. 367, 390 (1969).

Although the guarantee of free speech is not absolute, the State may

only proscribe communicative conduct (i.e., the communication of ideas, opinions,

and information) that invades the substantial privacy interests of another in an

essentially intolerable manner. Cohen v. California, 403 U.S. 15, 21 (1971). For

example, threatening speech is not a protected expression, but a criminal statute

that seeks to punish threats must “clearly distinguish between actionable or true

threat and protected speech.” State v. Hanson, 793 S.W.2d 270, 272 (Tex. App.—

Waco 1990, no writ). “[W]here First Amendment freedoms are implicated, the law

must be sufficiently definite to avoid chilling protected expression.” Long, 931

S.W.2d at 287.

Active 20386168.3 33
 “A statute is overbroad if it sweeps within its coverage speech or other

conduct protected by the First Amendment.” Garcia v. State, 212 S.W.3d 877, 887

(Tex. App.—Austin 2006, no pet.). “[A] claim that a statute is unconstitutional ‘as

applied’ is a claim that the statute operates unconstitutionally with respect to the

claimant because of his particular circumstances.” Scott v. State, 322 S.W.3d 662,

677 (Tex. Crim. App. 2010), abrogated on other grounds by Wilson v. State, 448

S.W.3d 418 (Tex. Crim. App. 2014). To the extent the trial court held that the

stalking statute makes Suzanna’s photographing at public places unlawful, that

statute is unconstitutional as applied to Suzanna. The stalking statute prohibits any

conduct, including speech. Tex. Pen. Code Ann. §§ 42.072; 1.07 (1), (10)

(prohibiting any conduct and defining conduct to include speech). And

photography is a form of speech, the “purposeful creation of [which] is entitled the

same First Amendment protection as the photographs and visual recordings

themselves.” Ex parte Thompson, 442 S.W.3d 325, 336-37 (Tex. Crim. App.

2014) (“[P]hotographs and visual recordings are inherently expressive, so there is

no need to conduct a case-specific inquiry into whether these forms of expression

convey a particularized message.”).

Photographing for news gathering is no exception to free speech

protection. Connell v. Town of Hudson, 733 F. Supp. 465, 469 (D.N.H. 1990)

(accumulating cases and holding that news gathering is protected by the First

Active 20386168.3 34
Amendment so the government cannot unreasonably interfere unless to prevent

access to a place from which the general public is prohibited for essential safety

purposes). And these First Amendment rights are especially applicable to Suzanna

whose photographs are published in local newspapers and magazines. Exs. 1, 2, 3,

4, 6; 2RR67-70, 82, 85, 95-99.

But the trial court’s protective order makes it potentially unlawful for

Suzanna to even appear at local music venues, much less photograph performances

and events at such venues, for fear that Hal (or any member of his family) might

also contemporaneously visit the venue. If she is at a location, and he shows up

after her, she potentially has to stop what she is dong and leave—or so a person of

ordinary intelligence would think from reading the order. Even the trial court

could not provide guidance as to what the “boundaries” of this order might be. See

2RR119-121 (advising Suzanna to leave anywhere she is if she sees Hal or anyone

in his family). This is exactly the problem warned against with overbroad statutes

that “inevitably lead citizens to steer far wider of the unlawful zone than if the

boundaries of the forbidden areas were clearly marked.” Long, 931 S.W.2d at 287-

88. And even if Suzanna’s warning to Hal not to “mess” with her actually

occurred and was a threat, “the legislature may legitimately punish the threat, but

it should not be permitted to hold someone’s First Amendment rights forever

hostage after he makes such a threat.” Id. at 293-94. Because the trial court’s

Active 20386168.3 35
interpretation of the relevant statutes prohibited Suzanna’s photography, it violated

her First Amendment Rights. This Court should vacate this order.

IV. The trial court erred in a number of discretionary rulings, which
compounded, led to an unfair hearing and resulted in this restrictive
order.

The due process hearing was fraught with errors resulting in a lifetime

of social stigma for Suzanna, as neither this protective order nor the social stigma

attached to it expires. See Finley v. Finley, 02-11-00045-CV, 2015 WL 294012, at

*2 (Tex. App.—Fort Worth Jan. 22, 2015, no pet.) (noting that “although

[protective orders] may ultimately expire, the social stigma attached to them

generally does not”); In re Salgado, 53 S.W.3d 752, 757-58 (Tex. App.—El Paso

2001, orig. proceeding) (noting the significant collateral legal repercussions and

social stigma); James v. Hubbard, 21 S.W.3d 558, 560-61 (Tex. App.—San

Antonio 2000, no pet.) (same). As outlined below, the trial court made a series of

errors that independently require reversal by this court, and cumulatively

exemplify the unfair proceedings Suzanna endured.

A. The trial court erred in granting a protective order based on false
testimony in violation of Suzanna’s due process rights.

The State presented and failed to correct Hal’s false testimony that he

obtained a restraining order against Suzanna in Nashville, Tennessee in 1997.

2RR14, 24, 27-28. This false testimony, along with the implausible allegations

Active 20386168.3 36
Hal provided in his application and at the hearing, was the basis of the State’s

application for a protective order and key evidence on which the trial court relied

in granting the Amended Order. But because the testimony was shown to be false

at the due process hearing and before entry of the protective order, it was offered in

violation of Suzanna’s right to due process. This Court should vacate this

Amended Order.

The “admission of false testimony could violate an applicant's due-

process rights, even when the State was unaware at the time of trial that the

testimony was false.” Ex Parte Chavez, 371 S.W.3d 200, 204 (Tex. Crim. App.

2012) (citing Ex Parte Chabot, 300 S.W.3d 768, 772 (Tex. Crim. App. 2009)).

Further, “[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). It is a due process violation just the same if the prosecutor should

have recognized the misleading nature of the evidence, but did not actually know

the evidence was false. Id. And while these standards have been applied to false

testimony the State prosecuting attorney uses to prove a criminal offense that

results in a criminal conviction, such standards are just as applicable here where

the State used Hal’s false testimony to prove the criminal offense of stalking which

resulted in restrictions on Suzanna’s liberties for her lifetime. See Hunt v. State ex

Active 20386168.3 37
rel. K.C., 03-11-00352-CV, 2012 WL 3793283, at *4 (Tex. App.—Austin Aug. 31,

2012, no pet.) (assuming, without deciding, that the principle that a defendant’s

due process rights may be violated if the State uses false testimony to obtain a

conviction applies in the context of protective orders).

Hal claimed repeatedly that he obtained a prior “restraining order”

against Suzanna. ICR8; 2RR14, 24, 27-28, 30, 33-34, 39. But Suzanna had never

before been served with a restraining order. 2RR89. And the State offered that

testimony despite many indications that the testimony was false. For example, in

its Application for Protective Order, the State asserted that Suzanna had engaged in

acts of stalking “to-wit” communicating a threat directly, through a person, or

through a third-party to “a person protected by an order;” “going to or near the

residence or place of employment or business of a person protected by an order;”

going to or near the school of a child protected under the order; and “engaging in

conduct directed specifically toward a person who is a person protected by an

order.” ICR8. The common claim in all those allegations is that stalking,

communications, and conduct was directed to “a person protected by an order.”

But Hal was not a person protected by any order, and the State had

many indications that Hal’s assertions otherwise were false. At the time of

application for protective order, the State was required to attach or file a copy of

Active 20386168.3 38
the prior restraining order with the court. Tex. Fam. Code Ann. § 82.008 (“An

application for a protective order that is filed after a previously rendered protective

order has expired must include a copy of the expired protective order attached to

the application.”). If such a copy was unavailable, the State was required to

provide “a statement that the order is unavailable to the applicant and that a copy

of the order will be filed with the court before the hearing on the application.” Id.

The State appeared to have been aware of its lack of a “restraining order” and this

statutory requirement as it included such a statement in its application. See ICR6.

Yet, the State never provided the trial court or Suzanna with a copy of this

purported restraining order, and instead, provided a Nashville Police Department

number. 10 ICR8.

Knowing it had no prior restraining order to offer into evidence, the

State elicited testimony from Hal about Hal’s 1997 “restraining order.” 2RR14.

For example, after Hal had already twice mentioned the alleged “anti-stalking law

and restraining order in Nashville that was implemented on [his] my behalf” that

“prohibited [Suzanna] from coming to [his] shows,” id., the State elicited the

following testimony:

10
This report, Nashville Police Department 97-53946, ICR8, was never offered or admitted into
evidence. See 2RR48 (sustaining the State prosecuting attorney’s hearsay objection to the
content of the police report being read into evidence).

Active 20386168.3 39
 Q. Now, shows -- how do you handle shows if you see her

there?

A. Well, I try to prohibit her from being there. In Nashville I

could that.

Q. How is that?

A. Very easily. I had this restraining order. I would just take

pictures of her to the police and say don't allow this person in

the building please. When I moved to Texas that didn't really

apply for that period

of time so we were back in that same kind of place.

Id.

It was not until cross-examination that Hal finally admitted that what

he had been referring to as a restraining order was in fact a police report. 2RR27.

And at no point did the State correct Hal’s false testimony after conceding to the

trial court that the State, too, only had a police report that Hal claimed was a

restraining order. See id.

Q. When you say you received a restraining order in Nashville,

Tennessee you testified that was in 1997, where was that

restraining order issued?

Active 20386168.3 40
 A. In Davidson County.

Q. Do you have a copy of that?

A. I do.

Q. May I see that?

A. I don't have it on me at this point in time.

MS. MORRIS: Your Honor, may I receive the restraining

order? What I have been provided by the district attorney's

office is a police report.

THE COURT: Do you have it, Mr. Robinson?

MR. ROBINSON: No, Your Honor, just the police report.

THE COURT: All right. Let's move on.

Q. (MS. MORRIS) So is what you provided to the -- what the district

attorney has in his possession is that what you're referring to as

restraining order?

A. Yes.

Id.

Thus, the evidentiary record indisputably shows that the State never

had evidence that Hal ever obtained a restraining/protective order against Suzanna

in Nashville, Tennessee as the State alleged in its application for a protective order

on Hal’s behalf. Further, the State elicited and failed to correct Hal’s repeated

Active 20386168.3 41
false testimony that he had a prior restraining order against Suzanna. Yet, this

false testimony was offered to support allegations of stalking, specifically that

Suzanna knew Hal would be threatened by her presence, that Hal was threatened

by her presence, and that a reasonable person would be threatened by the presence

of someone already ordered by a court to stay away. This testimony was false,

material, and violated Suzanna’s due process rights. For this reason, this Court

should vacate the Amended Order.

B. The trial court further erred in granting relief—specifically, an
order with a lifetime duration—that was not requested in the
application for protective order.

The trial court abused its discretion in entering an order that did not conform

to the pleadings as required by Tex. R. Civ. P. 301. Specifically, the trial court

erred in entering the stalking protective order under Tex. Code. Crim. Proc. §7A

for Suzanna’s lifetime when a family violence protective order was requested in

the State’s application for protective order. ICR4-7. Rule 301 stands for the basic

idea that “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) (citing Cunningham v. Parkdale Bank, 660 S.W.2d 810, 813

(Tex. 1983); see also Tex. R. Civ. P. 301. “The petition must give fair and

adequate notice of the claims being asserted, and, if the reviewing court cannot

reasonably infer that the petition contains a given claim, then the court must

Active 20386168.3 42
conclude the petition does not contain such a claim, even under a liberal

construction.” Teel v. Shifflett, 309 S.W.3d 597, 602 (Tex. App.—Houston [14th

Dist.] 2010, pet. denied). “[T]he part of a judgment… which the pleadings do not

support is considered void.” Moreno, 897 S.W.2d at 442.

The State’s application for a family violence protective order did not

conform to the stalking protective order which should be considered void. The

distinction between a protective order under the Texas Family Code and one under

the Code of Criminal Procedure is not a distinction without a difference. The

statutes differ in the allegations to be proven, the immediacy of the threats alleged,

and the duration of the protective order.

Contrary to the trial court’s conclusion that the State prosecuting attorney

had just “miscited” the statute in its application, that “miscited” statute was not the

only part of the State’s application requesting a family violence protective order

instead of a stalking protective order. 2RR6-9. The State’s application explicitly

referenced the Family Code multiple times in stating that “Applicant requests the

Honorable Court issue a Protective Order pursuant to Chapter 85 of the Texas

Family Code.” ICR4. That Chapter provides that for a court to issue a protective

order, it must first find that family violence occurred and family violence is likely

to occur in the future. Tex. Fam. Code. §85.001. Family violence is defined by

civil statute in the Family Code—not in the Texas Penal Code— and requires that

Active 20386168.3 43
the complainant and the accused be in a family or dating relationship.11 See id. §§

85.001, 71.004, 71.003. The State’s application also requested relief that would

only logically apply to those in a family or dating relationship, such as requesting

that “temporary support and visitation be set,” presumably referring to child

support and parental visitation with a child. ICR5.

The State’s application expressly alleged family violence and stalking,

but did not allege a familial relationship. For example, the application alleged that

Hal and Suzanna had the relationship of “Stalker”, and that Hal “was indeed

physically harmed[,] suffered bodily injury[,] and was assaulted by Respondent.”

ICR6. The State’s alternative allegation was that Suzanna repeatedly threatened

Hal, placing him “in reasonable fear of imminent physical harm.” Id. (emphasis

added). That physical harm be imminent is a requirement of a family violence

protective order, but is not a requirement of the criminal offense of stalking. See

Tex. Fam. Code § 71.004(1) (defining “family violence” to include a “threat that

reasonably places the member in fear of imminent physical harm, bodily injury,

assault, or sexual assault) (emphasis added); see also Molett v. State, 05-08-00728-

CR, 2009 WL 824761, at *10 (Tex. App.—Dallas Mar. 31, 2009, pet. ref’d)

11
While family violence can constitute a criminal offense, that offense is Assault and requires
proof of the elements of assault with the victim being a member of the actor’s family, as family
is defined in the Texas Family Code. Tex. Pen. Code Ann. § 22.01 (providing that misdemeanor
assault is enhanced to a third degree felony if the offense is committed against a family member
as defined in Tex. Fam. Code §§71.0021(b); 71.003; or 71.005).

Active 20386168.3 44
(holding that imminent bodily injury or death is not a required element for stalking

criminal offense). Thus, the inclusion of these allegations shows that the relief the

State requested was for family violence,12 not stalking.

And by entering a stalking protective order when a family violence

order was requested, the trial court impermissibly entered a lifetime order when

Suzanna had no notice that an order longer than two years was sought. The default

duration for a family violence protective order is two years. See Tex. Fam. Code

§85.025(a)(1) (providing that the duration is “not to exceed two years”). While a

court may render a protective order with a duration exceeding two years, to do so,

the court must first find that the respondent caused serious bodily injury or was the

subject of two or more protective orders based on family violence, and that family

violence is likely to occur in the future. Id. at § 85.025(a-1). In contrast, a stalking

protective 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. Crim. Proc. Code

§7A.03. “If a period is not stated in the order, the order is effective until the

second anniversary of the date the order was issued.” Id. Thus, the effect of the

12
The State also prayed for relief available to applicants seeking family violence protective
orders that wouldn’t be necessary to parties whose only relationship is that of “stalker.” See Tex.
Fam. Code §85.021 (permitting provisions regarding encumbering property and removing
children); ICR7 (requesting, for example, that Suzanna not be permitted to remove children from
Applicant or the county, interfere with property owned or leased by Applicant and Respondent).
This, too, shows that the State applied for a family violence protective order.

Active 20386168.3 45
distinction between a request for a family violence protective order and a stalking

protective order is the difference between two years and a lifetime.

And that difference has permanent repercussions considering the

State’s application never referenced the criminal statutes under which this

Amended Order was granted. See ICR4-6. Further, the State did not request a

stalking protective order from the court until the hearing. See 2RR9. Moreover,

the State never so much as mentioned that it sought a protective order than endured

for Suzanna’s lifetime until after both sides had rested, when the trial court refused

to entertain any protestations from Suzanna’s counsel. 2RR116-117. Yet, without

giving any notice to Suzanna that it intended to seek a protective order under a

different statute which permitted more severe restrictions, the State prepared and

presented to the court and Suzanna’s counsel for the first time at the hearing, a

lifetime stalking protective order under Tex. Crim. Proc. Code §7A. 2RR9. Thus,

this failure to comply the with the civil rules had a material effect on the outcome

of this case. This Court should vacate this protective order because it granted relief

not requested and did not conform to the pleadings.

C. The trial court erred in excluding testimony relevant to Hal’s
allegations.

The trial court improperly excluded testimony regarding facts and

circumstances relevant to Hal’s allegations as too remote and relied on evidence

Active 20386168.3 46
not in the record. “In a prosecution for stalking, each party may offer testimony as

to all relevant facts and circumstances that would aid the trier of fact in

determining whether the actor’s conduct would cause a reasonable person to

experience a fear…including the facts and circumstances surrounding any existing

or previous relationship between the actor and the alleged victim.” Tex. Crim.

Proc. Code § 38.46. This provision was added to ensure that the fact finder has a

clear picture of why a certain course of conduct cause the alleged victim fear.

Senate Bill 82 Bill Analysis Acts 2011, 82nd Leg., ch. 591 (S.B. 82), § 3, eff. Sept.

1, 2011.

In this case, where the trial court based its order on Hal’s testimony that, for

decades, Suzanna was “showing up, including other cities and places, where [Hal]

is,” II RR 121, any testimony about the parties’ interactions over the years would

be relevant. Over those decades, Hal had had multiple wives who he claims

witnessed Suzanna’s behavior. 2RR14-16, 22-23. Thus, the trial court’s

interjection that Suzanna’s counsel was asking too many questions about Hal’s

wives improperly directed the attorney to limit questioning to Hal’s current wife’s

involvement in “the past year or so.” 2RRR22. Likewise, the trial court’s frequent

admonitions to Suzanna’s counsel to “move on” effectively excluded testimony,

especially when Hal boldly asserted that he was “not going to answer [her]

question.” Id. at 28, 32, 34, 104. And because of those exclusions, this record is

Active 20386168.3 47
silent as to what unlawful conduct Hal claims Suzanna has engaged in during the

16-year period of her alleged stalking. See id. at 35, 42.

Hal was not permitted to testify as to what contact Suzanna had with him

since 1997. Id.at 35.

Q. So what contact has she had with you with? What contact

has she made with you since then [1997]?

A. Since then?

Q. Uh-huh.

A. Constant presence I guess. I mean, I don't know. I don't

know how to describe this kind of psychological warfare

because I don't practice it. If somebody said stay away from me

I stay away from that person. I don't understand this concept

legally or otherwise why someone would do this for 16 years.

MS. MORRIS: Objection, nonresponsive.

THE COURT: Overruled.

Id.at 35.

Nor was Hal permitted to testify as to how he claims Suzanna has threatened

him for the past 16 years.

Q. Now, beginning in 1997 what had she done to threaten -- by

she I'm referring --

Active 20386168.3 48
 MR. ROBINSON: Your Honor, objection. Asked to asked and

answered.

Q. (MS. MORRIS) What had she done to threaten you?

THE COURT: Sustained. Next question.

MS. MORRIS: Your Honor, I don't believe he has answered --

THE COURT: I have heard everything about 1997 and we don't

seem to be moving forward. I assume at some point we're going

to be moving forward to this particular time period that we're

talking about. I have no authority over what happened. I

understand the need to discuss some of the history, so I'm

giving you some latitude there. But we're talking about what

has happened here, I believe, in the last year, year-and-a-half or

so.

Id.at 42.

The trial court erred in excluding relevant testimony.

D. The trial court erred in concluding that its order was necessary.

Even had the trial court’s finding of stalking been based on credible

evidence that was legally and factually sufficient, the trial court still erred in

finding that the provisions of the entered Amended Order were necessary and

Active 20386168.3 49
appropriate to prevent or reduce the likelihood of future harm to Hal or a member

of his family or household. 3SCR7-10. Under the Amended Order, Suzanna is

“[p]rohibited from taking photos or images of applicant, applicant’s children,

spouse, grandchildren, or anyone in applicant’s household.” 3SCR8. Suzanna is

also prohibited from going to or near residence, businesses, schools, or child-care

facilities for Hal and his family, including his grandchildren. 3SCR8.

Additionally, Suzanna is prohibited from being within 1,000 feet of any venue

where Hal is performing beginning three hours before the performance until three

hours after the performance. Id. Nor can Suzanna, living in a rural part of

Wimberley, own or possess a firearm. Id. And all of these provisions endure for

Suzanna’s lifetime based on her run-ins with Hal due, for example, to her work as

a photojournalist and an alleged warning to Hal that if he messed with her, he

would be sorry. There was no evidence of unlawful conduct constituting the

criminal offense of stalking.

Because of the small size of Wimberley, such an order prevents

Suzanna from going to the central commercial area of town to conduct any

business. This is so despite the trial court’s reduction of the stay-away provisions

from 1,000 yards in the original order to 1,000 feet in the Amended Order. See

Appendices 2, 4. Thus, even the provisions of the Amended Order are restrictive

and incongruous as compared to the evidence supporting the trial court findings.

Active 20386168.3 50
In re Wean, 03-10-00383-CV, 2010 WL 3431708, at *8 (Tex. App.—Austin Aug.

31, 2010, no pet.) (concluding that it was an abuse of discretion for Judge Stephens

to issue a final protective order and noting the incongruity between the scarcity of

evidence of family violence and the significance of the requirements placed on

respondent by the final protective order).

This Court has the power to correct and modify the trial court's

judgment. See Tex. R. App. P. 43.2(b). Should this improvidently granted

protective order stand (which it should not), this Court should revise the provisions

of the order so as not to infringe on Suzanna’s liberties for a lifetime duration.

CONCLUSION AND PRAYER

For these reasons, this Court should vacate this protective order. There is no

evidence to support the order, and the order is unconstitutional, so vacating the

order is the desired relief. As alternative relief, this Court should remand for a new

hearing and modify the restrictions of this protective order pending re-hearing.

Active 20386168.3 51
 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

Active 20386168.3 52
 CERTIFICATE OF COMPLIANCE

As required by Texas Rule of Appellate Procedure 9.4(i)(3), I certify
that this brief contains no more than 12,564 words, excluding the parts of the brief
exempted by Rule 9.4(i)(l).

/ s / Mysha Lubke
Mysha Lubke

Active 20386168.3 53
 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 24th day of August, 2015:

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

/ s / Mysha Lubke
Mysha Lubke

Active 20386168.3 54
 APPENDIX

2005 Tennessee Laws Pub. Ch. 381 (S.B. 645) ........................................ Appendix 1

Trial Court’s Amendments the Stalking Protective Order ....................... Appendix 2

Map Showing 1,000 feet radius from Katherine Anne Porter
School in Wimberley, Texas ..................................................................... Appendix 3

Appealable Amended Stalking Protective Order ...................................... Appendix 4

Active 20386168.3 55
APPENDIX 1

1
Chapter No. 381] PUBLIC ACTS, 2005 1

CHAPTER NO. 381

SENATE BILL NO. 645

By Hagood, McLeary, Ketron, Burks, Curtis S. Person, Jr., Beavers, Black, Bryson,
Burchett, Chism, Cohen, Cooper, Crowe, Crutchfield, Finney, Ford, Fowler, Harper,
Haynes, Henry, Herron, Jackson, Kilby, Kurita, Kyle, McNally, Miller, Norris, Ramsey,
Southerland, Tracy, Williams, Mr. Speaker Wilder

Substituted for: House Bill No. 460

By Sontany, Sherry Jones, Eldridge, Todd, Langster, Pruitt, Moore, Hackworth, Harmon,
Bone, Shaw, West, Cobb, Ferguson, Fraley, Davidson, Curtiss, Fowlkes, Mike Turner,
Hood, Odom, Armstrong, Tindell, Larry Turner, Shepard, Tidwell, Litz, Buck, Maddox,
Favors, Harwell, Winningham, Lois DeBerry, Vaughn, Pinion, Brown, Marrero, Coleman,
DuBois, Gresham

AN ACT to amend Tennessee Code Annotated, Title 36, Chapter 3, Part 6; Title 39, Chapter
13, Part 5 and Title 39, Chapter 17, Part 3, relative to orders of protection and the scope
thereof.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE:

SECTION 1. Tennessee Code Annotated, Section 36-3-601, is amended by deleting
items (3), (5) and (7) and substituting instead the following:

(3) “Domestic abuse” means committing abuse against a victim as defined in
subsection (8);

(5) "Petitioner" means the person alleging domestic abuse, sexual assault or
stalking in a petition for an order for protection;

(7) "Respondent" means the person alleged to have abused, stalked or sexually
assaulted another in a petition for an order for protection;

SECTION 2. Tennessee Code Annotated, Section 36-3-601, is amended by adding the
following new numbered items:

( ) “Abuse” means inflicting or attempting to inflict physical injury on an adult or
minor by other than accidental means, placing an adult or minor in fear of physical harm,
physical restraint, or malicious damage to the personal property of the abused party;

( ) “Stalking victim” means any person, regardless of the relationship with the
perpetrator, who has been subjected to, threatened with or placed in fear of the offense
of stalking as defined in § 39-17-315;

( ) “Sexual assault victim” means any person, regardless of the relationship with
the perpetrator, who has been subjected to, threatened with or placed in fear of any form
of rape, as defined in §§ 39-13-502, 39-13-503, 39-13-506 or 39-13-522, or sexual
battery as defined in §§ 39-13-504, 39-13-505, or 39-13-527;
Chapter No. 381] PUBLIC ACTS, 2005 2

SECTION 3. Tennessee Code Annotated, Section 36-3-602, is amended by deleting
subsections (a) and (c) in their entirety and substituting instead the following:

(a) Any victim who has been subjected to, or threatened with or placed in fear of,
domestic abuse, stalking, or sexual assault may seek a relief under this part by filing a
sworn petition alleging such domestic abuse, stalking, or sexual assault by the
respondent.

(c) Venue for a petition for an order of protection and all other matters relating to
orders of protection shall be in the county where the respondent resides or the county in
which the domestic abuse, stalking or sexual assault occurred. If the respondent is not a
resident of Tennessee, the petition may be filed in the county where the petitioner
resides.”

SECTION 4. Tennessee Code Annotated, Section 36-3-605, is amended by deleting
subsections (a) and (b) in their entirety and substituting instead the following:

(a) Upon the filing of a petition under this part, the courts may immediately, for
good cause shown, issue an ex parte order of protection. An immediate and present
danger of abuse to the petitioner shall constitute good cause for purposes of this section.

(b) Within fifteen (15) days of service of such order on the respondent under this
part, a hearing shall be held, at which time the court shall either dissolve any ex parte
order which has been issued, or shall, if the petitioner has proved the allegation of
domestic abuse, stalking or sexual assault by a preponderance of the evidence, extend
the order of protection for a definite period of time, not to exceed one (1) year unless a
further hearing on the continuation of such order is requested by the respondent or the
petitioner; in which case, on proper showing of cause, such order may be continued for a
further definite period of one (1) year after which time a further hearing must be held for
any subsequent one-year period. Any ex parte order of protection shall be in effect until
the time of the hearing and, if the hearing is held within fifteen (15) days of service of
such order, the ex parte order shall continue in effect until the entry of any subsequent
order of protection issued pursuant to § 36-3-609. If no ex parte order of protection has
been issued as of the time of the hearing, and the petitioner has proven the allegation of
domestic abuse, stalking or sexual assault by a preponderance of the evidence, the
court may, at that time, issue an order of protection for a definite period of time, not to
exceed one (1) year.

SECTION 5. Tennessee Code Annotated, Section 36-3-606, is amended by deleting
from subsection (a) the following language:

(a) A protection order granted under this part to protect the petitioner from
domestic abuse may include, but is not limited to:

(1) Directing the respondent to refrain from committing domestic abuse
or threatening to commit domestic abuse against the petitioner or the petitioner's
minor children;

and substituting instead the following:
Chapter No. 381] PUBLIC ACTS, 2005 3

(a) A protection order granted under this part to protect the petitioner from
domestic abuse, stalking or sexual assault may include, but is not limited to:

(1) Directing the respondent to refrain from committing domestic
abuse, stalking or sexual assault or threatening to commit domestic abuse,
stalking or sexual assault against the petitioner or the petitioner's minor children;

SECTION 6. Tennessee Code Annotated, Section 36-3-613, is amended by deleting the
section in its entirety and substituting instead the following:

(a) The petitioner's right to relief under this part is not affected by petitioner's
leaving the residence or household to avoid domestic abuse, stalking or sexual assault.

(b) The petitioner's right to relief under this part is not affected by use of such
physical force against the respondent as is reasonably believed to be necessary to
defend the petitioner or another from imminent physical injury, domestic abuse, or
sexual assault.

SECTION 7. This act shall take effect July 1, 2005, the public welfare requiring it.

PASSED: May 24, 2005

APPROVED this 9th day of June 2005
APPENDIX 2

1
 CAUSE NO. C2014-1690C

STATE OF TEXAS § IN THE COUTY COURT# 2
FOR THE PROTECTION OF
HAL KETCHUM
APPLICANT § COURT OF
v.
SUZANNA EKCHUM, AKA
SUSAN ECKHERT
RESPONDENT § COMAL COUNTY, TEXAS

AMENDED STALKING PROTECTIVE ORDER

On the 16th day of JANUARY, 2015, came to be heard the Application of HAL
KETCHUM for a Protective Order.

__x_ HAL KETCHUM appeared in person and announced ready.
__x_ SUZANNA EKCH UM, AKA SUSAN ECKH ERT appeared in person
and and announced ready.
___ SUZANNA EKCHUM, AKA SUSAN ECKHERT appeared by his attorney,
_______________,and announced ready.
___ SUZANNA EKCHUM, AKA SUSAN ECKHERT did not appear, although duly and
properly served noticed by Writ.

The Court, having considered the pleadings and heard the evidence and the arguments,
finds that all necessary, prerequisites of the law have been legally satisfied and that this Court has
jurisdiction over the parties and the subject matter of this cause.

The Court finds there are reasonable grounds to believe that the applicant is the victim
stalking by respondent and the following orders are necessary for the safety, welfare, and
protection of HAL KETCHUM, and other members of the families or household who are affected
by this suit.

IT IS THEREFORE ORDERED that Respondent, SUZANNA EKCHUM, AKA
SUSAN ECKHERT be and hereby is prohibited from:

(1) Committing acts of stalking;

(2) Communicating:

(a) directly with a person protected by an order or a member of the family or household
of a person protected by an order, in a threatening or harassing manner;

(b) a threat through any person to a person protected by an order, or a member of the
family or household of a person protected by an order; and

(c) in any manner, including through a third party, with a person protected by an order,
except through the party's attorney or a person appointed by the court;
(3) Going to or near the residence or place of employment or business of a person protected by
an order or a member of the family or household of a person protected by an order;

(4) Going to or near the residence, child-care facility, or school a child or grandchild protected
under the order attends or in which the child or grandchild normally resides;

(5) Going within 1,000 yardsfeet of any venue where applicant is performing during the
following times: during applicant's performance, three (3) hours prior to applicant's
performance, and three (3) hours immediately after applicant's performance;

(6) Prohibited from taking photos or images of applicant, applicant's children, spouse,
grandchildren, or anyone in applicant's household;

(7) Engaging in conduct directed specifically toward a person who is a person protected by an
order or a member of the family or household of a person protected by an order, including
following the person, that is reasonably likely to harass, annoy, alarm, abuse, torment, or
embarrass the person;

GOING WITHIN 1000 YARDSFEET OF THE FOLLOWING PERSONS OR
LOCATIONS:

HAL KETCHUM
ROSE KETCHUM
ANDREA KETCHUM

RESIDENCE: 115 Fisch er Store RD, Fisch er TX 78623, for as long as
applicant or protected persons reside at th at location, or any future place of
residence

WORK: or any current or future place of employment known by SUZANNA
EKCHUM, AKA SUSAN ECKHERT, as long as applicant or protected persons
work at that location.

SCHOOL: Katherine Ann Porter School, 515 FM 2325 Wimberley, TX, 78676 or any
future school facility, as long as protected person attends that school

IT IS ORDERED that any license or permit to carry any concealed hand gun for
Respondent is suspended for her lifetime.

THE CLERK IS ORDERED to send a copy of this order to: The Chief of Police of the City
of New Braunfels, Comal County, Texas; the Sheriff of Comal County, Texas; the Texas
Department of Public Safety, Austin, Texas; any school or child care facility included in this
Order.

"A PERSON WHO VIOLATES THIS ORDER MAY BE PUNISHED FOR
CONTEMPT OF COURT BY A FINE OF AS MUCH AS $500.00 OR BY CONFINEMENT
IN JAIL FOR AS LONG AS SIX MONTHS, OR BOTH."
 "NO PERSON, INCLUDING A PERSON WHO IS PROTECTED BY THIS
ORDER, MAY GIVE PERMISSION TO ANYONE TO IGNORE OR VIOLATE ANY
PROVISION OF THIS ORDER. DURING THE TIME IN WHICH THE ORDER IS
VALID, EVERY PROVISION OF THIS ORDER IS IN FULL FORCE AND EFFECT
UNLESS A COURT CHANGES THE ORDER."

"A VIOLATION OF THIS ORDER BY COMMISSION OF AN ACT
PROHIBITED BY THE ORDER MAY BE PUNISHABLE BY A FINE OF AS MUCH AS
$4,000.00 OR BY CONFINEMENT IN JAIL FOR AS LONG AS ONE YEAR, OR BOTH.
AN ACT THAT RESULTS IN STALKING MAY BE PROSECUTED AS A SEPARATE
MISDEMEANOR OR FELONY OFFENSE. IF THE ACT IS PROSECUTED AS A
SEPARATE FELONY OFFENSE, IT IS PUNISHABLE BY CONFINEMENT IN PRISON
FOR AT LEAST TWO YEARS."

"IT IS UNLAWFUL FOR ANY PERSON WHO IS SUBJECT TO A PROTECTIVE
ORDER TO POSSESS A FIREARM OR AMMUNITION."

All said Protective Orders contained herein shall continue in full force and effect until the
lifetime of either party (HAL KETCHUM or SUZANNA EKCHUM a.k.a. SUSAN ECKHERT).

SIGNED this 22nd7th day of JanuaryApril, 2015.

_______________________________________
JUDGE PRESIDING
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Document 2 ID interwovenSite://BBDMS/Active/20289152/1
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APPENDIX 3

1
1000 Feet from Katherine Ann Porter School
Free Map Tools Radius
Polygon
APPENDIX 4

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