Leah Belinda Lopez v. Lilia Isela Crisanto

• Court: Court of Appeals of Texas
• Decided: August 28, 2019
• Docket: 08-17-00252-CV
• Status: Published

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

§ LEAH BELINDA LOPEZ, No. 08-17-00252-CV § Appellant, Appeal from § v. 65th District Court § LILIA ISELA CRISANTO, of El Paso County, Texas § Appellee. (TC # 2017DCM1462) §

OPINION

This is an appeal from an order granting a protective order in favor of Appellee Lilia Isela

Crisanto and against Appellant Leah Belinda Lopez, based on a finding that Crisanto was the

victim of stalking. Lopez contends that the trial court’s finding was not supported by legally or

factually sufficient evidence. For the reasons set forth below, we disagree, and we therefore

affirm the trial court’s order.

PROCEDURAL AND FACTUAL BACKGROUND

On March 3, 2017, Crisanto applied for a protective order pursuant to Article 7A.01 of the

Texas Code of Criminal Procedure, alleging that Lopez had engaged in conduct that constituted

stalking. The trial court held a hearing on Crisanto’s application on October 23, 2017. Although

Lopez was duly notified of the hearing, she did not personally appear at the hearing, but was represented by counsel.1

At the hearing, Crisanto testified that prior to their divorce in April of 2017, Lopez and her

then-husband, Jose Crisanto, began having an affair. According to Crisanto, she learned of the

affair sometime in 2016 when Lopez sent her an e-mail to which Lopez attached photographs of

Crisanto’s husband and Lopez engaged in sexual intercourse, together with the following message:

“[T]his is what I’m doing with your husband.” Crisanto testified that Lopez thereafter sent her

multiple e-mails and as many as 50 text messages, to which she attached additional photographs

of Lopez and Crisanto’s husband having anal and oral sex. At least eight of the photographs were

introduced into evidence at the hearing, and Crisanto identified them as being photographs Lopez

had sent her through electronic means. Lopez presented no evidence to rebut Crisanto’s

testimony that Lopez was the sender of the various communications in question.

Crisanto also recalled that when she went into her front yard one morning in March of

2017, she found four “inappropriate” photographs that Crisanto believed Lopez had left in the yard

for her to find, which again depicted Lopez and Crisanto’s husband engaged in various sexual acts.

Crisanto testified that there was a message on the back of one of the photographs, which she

believed Lopez had written, to the effect that the photographs were “evidence” that Crisanto’s

husband was “still f***ing” her. According to Crisanto, she responded only one time to Lopez’s

communications, asking her to stop. However, because Lopez failed to stop, Crisanto contacted

the police on two or three occasions over the course of several months in 2016 and 2017, and filed

at least one written police report in 2017 complaining about Lopez’s conduct. Crisanto testified

1 Prior to the hearing, Lopez filed a counterapplication seeking a protective order against Crisanto, but the trial court dismissed her counterapplication due to Lopez’s failure to appear at the hearing. The dismissal of the counterapplication is not at issue in this appeal. 2 that Lopez’s conduct caused her to feel “humiliated,” “threatened,” “insecure,” and concerned for

her safety. She further testified that because of the “horrendous” nature of Lopez’s conduct, she

found it necessary to seek psychiatric counseling.

At the close of the hearing, the trial court issued a protective order against Lopez pursuant

to Chapter 7A of the Code of Criminal Procedure, expressly finding that there were “reasonable

grounds to believe that [Crisanto] is the victim of stalking.” The order, which expires on October

22, 2019, prohibits Lopez from communicating with Crisanto in a “threatening or harassing

manner,” from coming within 200 yards of her business or residence, and from engaging in

conduct that is “reasonably likely to harass, annoy, alarm, abuse, torment, or embarrass” Crisanto.

DISCUSSION

Lopez argues in two related issues that the evidence presented at the hearing was both

legally and factually insufficient to support the trial court’s finding that Crisanto was the victim of

stalking. In support of her argument, Lopez contends that Section 42.072 of the Texas Penal

Code, which defines the offense of stalking, required Crisanto to present evidence that Lopez’s

conduct caused her to be in fear of bodily injury or death, or in fear that an offense would be

committed against her property. Lopez contends that Crisanto presented no evidence from which

the trial court could have found that she had any such fear. However, as explained below, under

the current version of the Penal Code, Crisanto was not required to present evidence that she had

any such fears in order to support the trial court’s finding that she was the victim of stalking;

instead the trial court was entitled to find that Crisanto was a stalking victim for purposes of issuing

a Chapter 7A protective order based solely on evidence that Lopez engaged in the type of harassing

conduct described by Crisanto at the hearing.

3 The Current Version of the Stalking Statute

The Texas Code of Criminal Procedure gives a trial court the authority to issue a protective

order “without regard to the relationship between the applicant and the alleged offender” if, after

holding a hearing, the court determines “there are reasonable grounds” to believe the applicant is

the victim of certain specified Penal Code offenses, including the offense of stalking. TEX.CODE

CRIM.PROC.ANN. art. 7A.01(a)(1); 7A.03. In turn, stalking is defined in Section 42.072 of the

Texas Penal Code. Prior to 2013, Section 42.072 of the Penal Code defined stalking as only

including situations in which the perpetrator engaged in threatening conduct that placed the victim

in fear of bodily injury or death, or in fear that an offense against the victim’s property might take

place. However, effective September of 2013, the Legislature amended the Code to expand the

definition of stalking to also include situations in which the perpetrator engaged in conduct that

constituted the offense of “harassment” under Section 42.07 of the Penal Code. 2 See Acts of

2 In particular, Section 42.072 of the Penal Code, the stalking statute, was amended as follows, with the added language in bold:

(a) A person commits an offense if the person, on more than one occasion and pursuant to the same scheme or course of conduct that is directed specifically at another person, knowingly engages in conduct that: (1) constitutes an offense under Section 42.07, or that the actor knows or reasonably should know [believes] the other person will regard as threatening: (A) bodily injury or death for the other person; (B) bodily injury or death for a member of the other person’s family or household or for an individual with whom the other person has a dating relationship; or (C) that an offense will be committed against the other person’s property; (2) causes the other person, a member of the other person’s family or household, or an individual with whom the other person has a dating relationship to be placed in fear of bodily injury or death or in fear that an offense will be committed against the other person’s property, or to feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended; and (3) would cause a reasonable person to [fear]: (A) fear bodily injury or death for himself or herself; (B) fear bodily injury or death for a member of the person’s family or household or for an individual with whom the person has a dating relationship; (C) fear that an offense will be committed against the person’s property; or (D) feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended.

4 May 24, 2013, 83rd Leg., ch. 1278 (H.B. 1606), § 2, TEX.GEN.LAWS 3231; Shoemaker v. State,

493 S.W.3d 710, 716–17 (Tex.App--Houston [1st Dist.] 2016, no pet.)(recognizing legislative

changes to the stalking statute); see also Seals v. Wilbourn, ___S.W.3d ___, No. 12-17-00208-CV,

2018 WL 1180742, at *2 (Tex.App.--Tyler, Mar. 7, 2018, pet. denied)(affirming trial court’s

finding that a protective order applicant was the victim of stalking based solely on the respondent’s

harassing conduct). Thus, Section 42.072 of the Code now reads, in relevant part, that: “A person

commits [the] offense [of stalking] if the person, on more than one occasion and pursuant to the

same scheme or course of conduct that is directed specifically at another person, knowingly

engages in conduct that: (1) constitutes an offense under Section 42.07 . . . ; (2) causes the other

person . . . to feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended; and

(3) would cause a reasonable person to . . . feel harassed, annoyed, alarmed, abused, tormented,

embarrassed, or offended. TEX.PENAL CODE ANN. § 42.072.

In turn, Section 42.07 of the Code provides, in relevant part, that: “A person commits

[the] offense [of harassment] if, with intent to harass, annoy, alarm, abuse, torment, or embarrass

another, the person: (1) initiates communication and in the course of the communication makes

a comment, request, suggestion, or proposal that is obscene . . . [and] (7) sends repeated electronic

communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass,

or offend another.” TEX.PENAL CODE ANN. § 42.07(a)(1)(7). The term “obscene” is defined in

the harassment statute as a communication “containing a patently offensive description of or a

solicitation to commit an ultimate sex act, including sexual intercourse, masturbation, cunnilingus,

fellatio, or anilingus . . . .” TEX.PENAL CODE ANN. § 42.07(b)(3). The term “electronic

Acts of May 24, 2013, 83rd Leg., ch. 1278 (H.B. 1606), § 2, TEX.GEN.LAWS 3231 (current version at TEX.PENAL CODE ANN. § 42.072 5 communication” is defined in the statute as including, among other things, communications sent

via electronic mail and text messages. TEX.PENAL CODE ANN. § 42.07(b)(1)(A).

In the present case, Lopez’s conduct took place in 2016 and 2017, well after the effective

date of the amendments to the Penal Code, which expanded the definition of stalking to include

the above-described types of harassing conduct. Accordingly, we will review Lopez’s argument

that there was insufficient evidence to support the trial court’s finding that Crisanto was the victim

of stalking, for purposes of issuing a Chapter 7A protective order, with this expanded definition of

stalking in mind.

Standard of Review

We review a trial court’s decision to grant or deny a Chapter 7A protective order for both

legal and factual sufficiency of the evidence. See State for Prot. of P.B. v. V.T., 575 S.W.3d 921,

924 (Tex.App--Austin 2019, no pet.); Webb v. Schlagal, 530 S.W.3d 793, 802 (Tex.App--Eastland

2017, pet. denied); Shoemaker, 493 S.W.3d at 714-15; see generally In re Doe, 19 S.W.3d 249,

253 (Tex. 2000)(“When the trial court acts primarily as a factfinder, appellate courts normally

review its determinations under the legal and factual sufficiency standards.”).

In resolving a legal sufficiency challenge, we consider whether the record evidence would

have enabled “a reasonable and fair-minded fact finder” to render the decision under review. See

Gunn v. McCoy, 554 S.W.3d 645, 658 (Tex. 2018), citing City of Keller v. Wilson, 168 S.W.3d

802, 827 (Tex. 2005). In making this determination, we consider all of the evidence in the light

most favorable to the prevailing party, make every reasonable inference in that party’s favor, and

disregard contrary evidence unless a reasonable fact finder could not. See Bos v. Smith, 556

S.W.3d 293, 300 (Tex. 2018); see also City of Keller, 168 S.W.3d at 827; Shoemaker, 493 S.W.3d

6 at 715. Where there is more than a mere scintilla of evidence to support the issuance of a

protective order, we will find the evidence legally sufficient to uphold the order. See, e.g., Seals,

___S.W.3d at ___, 2018 WL 1180742, at *1; Webb, 530 S.W.3d at 802; Shoemaker, 493 S.W.3d

at 715.

In resolving a factual sufficiency challenge, we consider the entire record, and we will set

aside a trial court’s finding only if it is “so against the great weight and preponderance of the

evidence as to be clearly wrong and unjust.” Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996).

When conducting a factual sufficiency review, a court must not substitute its judgment for that of

the fact finder, who “is the sole judge of the credibility of witnesses and the weight to be given to

their testimony.” Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003); see

also Webb, 530 S.W.3d at 802, citing Turner v. KTRK Television, Inc., 38 S.W.3d 103, 134 (Tex.

2000). The fact finder is permitted to resolve inconsistencies in the testimony of any witness,

may draw inferences from the evidence presented, and may choose between conflicting inferences.

Shoemaker, 493 S.W.3d at 715, citing McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986).

An appellate court will not overturn a fact finder’s determination unless only one inference can be

drawn from the evidence and it opposes the fact finder’s resolution of that issue. Id., citing

Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 461 (Tex. 1992); see also Seals, ___ S.W.3d at

____, 2018 WL 1180742, at *1.

Analysis

As explained above, under the current version of the Penal Code, the trial court was entitled

to find that Crisanto was the victim of stalking if it determined that: (1) Lopez, on more than one

occasion and pursuant to the same scheme or course of conduct directed specifically at Crisanto,

7 knowingly engaged in conduct that constituted the offense of “harassment” as defined above; (2)

Crisanto subjectively felt harassed, annoyed, alarmed, abused, tormented, embarrassed, or

offended by Lopez’s conduct; and (3) a reasonable person would have had those same feelings.

See Shoemaker, 493 S.W.3d at 718, citing TEX.PENAL CODE ANN. § 42.072. Based on our review

of the record, we conclude that there was both legally and factually sufficient evidence to support

a finding that all three of the elements of the stalking statute were met.

First, we conclude that there was legally sufficient evidence to support a finding that Lopez

knowingly engaged in conduct that constituted the offense of harassment, and that she engaged in

such conduct on more than one occasion, as part of a common scheme or course of conduct directed

at Crisanto. As explained above, under the two relevant provisions in the Penal Code, a person

may commit the offense of harassment by either initiating “obscene” communications, i.e.,

communications describing an “ultimate sex act” in a patently offensive manner, or by sending

repeated electronic communications in a “manner reasonably likely to harass, annoy, alarm, abuse,

torment, embarrass, or offend another.” TEX.PENAL CODE ANN. § 42.07(a)(1)(7). The evidence

presented at the hearing was legally sufficient to support a finding that Lopez engaged in conduct

that constituted the offense of harassment under both of these provisions.

As set forth above, Crisanto testified at the hearing, without contradiction, that Lopez

initiated communications with her, told Crisanto on at least two occasions that she was engaging

in sexual activity with Crisanto’s husband, and repeatedly sent Crisanto graphic photographs

depicting the two of them engaged in various sexual acts. These communications were not only

patently offensive and therefore “obscene” in light of their graphic and descriptive sexual nature,

but Lopez sent the communications primarily through electronic means in a manner that was

8 reasonably likely to harass, annoy or embarrass Crisanto given their inappropriate and obviously

upsetting subject matter. Further, given the repeated nature of Lopez’s communications, which

took place over the course of several months, the trial court could have reasonably determined that

Lopez knowingly sent the communications as part of a common scheme or course of conduct

directed at Crisanto to torment or annoy her with proof of her affair with Crisanto’s husband.

Second, we conclude that there was legally sufficient evidence to support a finding that

Crisanto subjectively felt “harassed, annoyed, alarmed, abused, tormented, embarrassed, or

offended” by Lopez’s conduct. Crisanto expressly testified at the hearing that the communications

she received from Lopez caused her to feel “humiliated,” and even necessitated the need for her to

seek psychiatric counseling. And third, we conclude that Crisanto’s testimony was legally

sufficient to support a finding that a reasonable person in Crisanto’s situation, i.e., a person who

was being inundated with graphic photographs of her then-husband engaged in various sexual acts

with another woman, would have had those same feelings.

Accordingly, in reviewing the record under a legal-sufficiency standard, we conclude that

there was more than a scintilla of evidence presented at the hearing to support the trial court’s

finding that Crisanto was the victim of Lopez’s stalking under the current version of the Code, and

that Crisanto was therefore entitled to a Chapter 7A protective order on that basis. Similarly, in

reviewing this same uncontradicted evidence under a factual-sufficiency standard, we conclude

that the trial court’s finding that Crisanto was the victim of stalking was not “so against the great

weight and preponderance of the evidence as to be clearly wrong and unjust.”

Lopez’s Issues One and Two are overruled.

9 CONCLUSION

The trial court’s order is affirmed.

August 28, 2019 ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rodriguez, and Palafox, JJ.