ACCEPTED 03-17-00551-CV 21278577 THIRD COURT OF APPEALS AUSTIN, TEXAS 12/13/2017 4:52 PM JEFFREY D. KYLE CLERK No. 03-17-00551-CV
FILED IN 3rd COURT OF APPEALS IN THE AUSTIN, TEXAS TEXAS COURT OF APPEALS 12/13/2017 4:52:43 PM FOR THE THIRD JUDICIAL CIRCUIT JEFFREY D. KYLE Clerk
STATE OF TEXAS For the Protection of MARIA CAMILA BERNAL, Plaintiff-Appellee,
v.
NICHOLAS VINCENT RUSSO, Defendant-Appellant.
Appeal from County Court at Law #4 for Travis County Cause No. C-1-CV-17-001153
___________________
BRIEF FOR APPELLANT ___________________
Clifford Swayze 1000 Heritage Center Circle Round Rock, Texas 78664 Phone (512) 335-5245 Fax (512) 857-0762 e-Mail caswayze22@gmail.com
Attorney for Appellant, Nicholas Vincent Russo
ORAL ARGUMENT REQUESTED
1|Page IDENTITY OF PARTIES AND COUNSEL
THE STATE OF TEXAS For the Protection of MARIA CAMILA BERNAL, Plaintiff-Appellee,
v. No. 03-17-00551-CV
The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the judges of this Court may evaluate possible disqualification or recusal.
A. Parties
1. Plaintiff-Appellee: The State of Texas 2. Real Party in Interest: Maria Camila Bernal 3. Defendant-Appellant: Nicholas Vincent Russo
B. Attorneys for Plaintiff-Appellee:
In the Trial Court & On Appeal Jenny Anderson SBN 24027197 Hilary L. Riley SBN: 24013404 P.O. Box 1748 Austin, Texas 78767 TEL: (512)-854-4163 FAX: (512)-854-9570
C. Attorney for Defendant-Appellant:
In the Trial Court & on Appeal Clifford Swayze 1000 Heritage Center Circle
2|Page Round Rock, Texas 78664 Phone (512) 335-5245 Fax (512) 857-0762 e-Mail caswayze22@gmail.com
3|Page TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL…………………………………………4
STATEMENT OF THE CASE…………………………………………………….7
STATEMENT REGARDING ORAL ARGUMENT………………………………….8
STATEMENT OF THE ISSUES……………………………………………...……9
STATEMENT OF FACTS …...…………………………………………………10
SUMMARY OF THE ARGUMENT …………….…………………...…………...19
ARGUMENT. ...…………………………………………………...……….....20
I. APPLICABLE LEGAL STANDARDS………….………………………...………21
A. STANDARD OF REVIEW ON DIRECT APPEAL .............................………21
B. STANDARD FOR GRANTING A PERMANENT PROTECTIVE ORDER……..23
II. MR. RUSSO DID NOT COMMIT THE OFFENSE OF STALKING AS DEFINED BY TEXAS PENAL CODE § 42.072 BECAUSE THE EVIDENCE IS LEGALLY AND FACTUALLY INSUFFICIENT……………………………………………….……………….24
A. THERE IS NOT A SCINTILLA OF EVIDENCE THAT MR. RUSSO COMMITTED THE OFFENSE OF HARASSMENT AS DEFINED IN TEX. PENAL CODE § 42.07(A)(7)...................................................………………………...25
B. THERE IS NOT SCINTILLA OF EVIDENCE THAT MR. RUSSO OTHERWISE ENGAGED IN CONDUCT THAT HE KNEW OR REASONABLY SHOULD HAVE KNOWN THAT MS. BERNAL WOULD REGARD AS THREATENING BODILY INJURY, DEATH, OR DAMAGE TO HER PROPERTY…………………………………………………………….27
CONCLUSION AND PRAYER…………………………………………...31
Appendix…………………………………………………………………...34
4|Page TABLE OF AUTHORITIES
Cases
Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998)………………………………………….21
Benoit v.Wilson 239 S.W.2d 792, 796-97 150 Tex. 273, 917(Tex. 1951)…………...…...…22
City of Houston v. Hildebrandt 265 S.W.3d 22 (Tex.App. —Houston [1st Dist.] 2008, pet. denied) …………………………………......………………………............22
City of Keller v. Wilson 168 S.W.3d 802 (Tex. 2005)……………………………………………….21
In re Doe 19 S.W.3d 249, 253 (Tex. 2000)………………………………….………..21
Kroger Co. v. Persley 261 S.W.3d 316, 319 (Tex. App.- Houston [1st Dist.] 2008, no pet.) ……………………………………………………………………............22
Lakner v. Van Houten No. 01-09-00422-CV, 2011 Tex. App. LEXIS 2412, 2011 WL 1233381, at (Tex. App.—Houston [1st Dist.] Mar. 31, 2011, no pet.) (mem. op.) (affirming grant of protective order)……………………….………………………………………………22
Ortiz v. Jones 917 S.W.2d 770, 772 (Tex. 1996)…………………….……...……….........22
Ramo, Inc. v. English 500 S.W.2d 461, 467 (Tex. 1973)……………………………….…………22
Richardson v. Estate of of Smith
5|Page No. 01-14-00034-CV, 2014 Tex. App. LEXIS 12333, 2014 WL 6068427 (Tex. App. —Houston [1st Dist] Nov. 13, 2014, no pet. …………………..22
Turner v. KTRK Television, Inc. 38 S.W.3d 103 (Tex. 2000)……………………….………...……………...22
Vongontard v. Tippit 137 S.W.3d 109, 112 (Tex. App-Houston [1st Dist.] 2004, no pet.)……….21
Shoemaker v. State for Protection of C.L. 493 S.W.3d 710, 713 (Tex. Crim. App. 2016)………………………………21
McGowan v. State, 375 S.W.3d 585 (App. 14 Dist. 2012)…………………..........................30, 31
Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 461 (Tex. 1992)……………………………………….....23
Ploeger v. State, 189 S.W.3d 799 (Tex. App.—Houston [1st Dist.] 2006, no pet.)………….24 Statutes
Texas Code Penal Code § 42.072
Texas Code of Penal Code § 42.07
Texas Code of Criminal Procedure Art. 7A.03
6|Page STATEMENT OF THE CASE
Based on incidents recounted in a sworn affidavit (I CR 9-14), the State of
Texas filed an application for a protective order on behalf of Ms. Maria Camila
Bernal pursuant to Texas Code of Criminal Procedure Art. 7A.03 in County Court
at Law #4 for Travis County. State v. Mr. Russo, No. C-1-CV-17-001153. (I CR 5-
8) Based on Ms. Bernal’s affidavit, Judge John T. Wong issued a Temporary Ex
Parte Protective Order. (I CR 15-18) Following a hearing, Judge Denton issued a
permanent Stalking Protective Order. (I CR 30-35) Mr. Russo filed a Request for
Findings of Fact and Conclusions of Law 2RR 37-38), and a Motion for New Trial.
(I CR 39-42) On July 21, 2017, Judge Denton denied the motion. (I CR 50) Mr.
Russo timely filed his notice of appeal on August 18, 2017. (I CR 51) Tex. R. App.
Proc. 26.1.
7|Page STATEMENT REGARDING ORAL ARGUMENT
This case involves interpretation of criminal statutes under which a lifetime
Stalking protective order was entered. This protective order will restrict Appellant’s
liberty and freedom for the rest of his lifetime. Due to the complexity integral in
construing 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 complex, and the Court would benefit from an explanation of
the factual effect of the lifetime protective order. For all of these reasons, Appellant
requests oral argument.
8|Page STATEMENT OF THE ISSUES
ISSUE ONE: Whether the evidence is factually and legally sufficient to justify the
issuance of a permanent Stalking Protective Order against Mr. Russo where the State
failed to present evidence of any threat to Ms. Bernal and failed to establish that Mr.
Russo possessed the requisite mens rea as required by statute.
9|Page STATEMENT OF FACTS
I. Communications / Contact prior to February 19, 2015
From mid-2014 until February 19, 2015, Mr. Russo and Ms. Bernal worked as
weekend anchors and reporters in Midland at a station called KMID. 2 RR 56-57,
114. KMID had a small news room with no cubicles; desks were close to each other.
2 RR 58-59. The two lived in the same apartment complex and within 300ft of each
other. 2 RR 112) Ms. Bernal invited Mr. Russo over to her apartment. 2 RR 112.
They worked, partied, consumed alcohol, and socialized together on a regular basis.
2 RR 112-113.
On November 24, 2014, Mr. Russo gave Ms. Bernal some “Peeps” (an Easter
candy) along with a letter. 2 RR 58-59. Ms. Bernal did not recall the contents of the
letter. 2 RR 59. About the same time Ms. Bernal also started noticing that Mr. Russo
“liked” some of her very old Facebook posts. She understood this to mean he was
looking through them and thought it “very strange.” 2 RR 59.
On December 21, 2014, Mr. Russo gave Ms. Bernal a Christmas card wherein
Mr. Russo indicated that she “was the best thing that had happened to him.” 2 RR
61. Ms. Bernal responded to the card by telling Mr. Russo that she was not interested
in him. 2 RR 62.
On January 5, 2015, Mr. Russo fell on the ice and broke his teeth. 2 RR 62.
While at the hospital, Mr. Russo sent a text message to Ms. Bernal asking for her
10 | P a g e support. Ms. Bernal responded, “I am willing to help you but you need to understand
that I am not interested in you and I do not like you, but I’m willing to go help you
if that is what you need.” 2 RR 62-63. Ms. Bernal went to the hospital with a group
of people to visit or assist Mr. Russo. 2 RR 63.
On January 15, 2015, Mr. Russo asked if he could come to her apartment. Ms.
Bernal believed he want to say thank you for her help. 2 RR 63. Ms. Bernal declined
permission. 2 RR 64. Mr. Russo did not go to her apartment uninvited.
That same month, a group of co-workers from KMID – including Mr. Russo and
Ms. Bernal -- went to a bar in Midland. 2 RR 64. Ms. Bernal was accompanied by
a friend from church. 2 RR 64. Mr. Russo talked with Ms. Bernal’s friend. 2 RR 64.
Thereafter, Ms. Bernal noticed Mr. Russo at church two or three times but there is
no evidence that he ever approached Ms. Bernal there. 2 RR 66-67.
On the weekends, when Ms. Bernal was the news anchor and Mr. Russo was the
meteorologist, they were “pretty much alone” in the news room which provided
opportunities for conversations between the two of them. RR 68. One conversation
at the end of January was about a job over Ms. Bernal had received in Arkansas, also
within the same company. 2 RR 67-68. After learning of the offer, Mr. Russo posted
a comment on Facebook indicating that he would miss her. 2 RR 68. Later, Mr.
Russo asked Ms. Bernal if she had taken the job. When she responded in the
negative, Mr. Russo “jumped up in the air and said ‘woo hoo.’” 2 RR 69. Ms.
11 | P a g e Bernal responded by sitting Mr. Russo down and saying, “I don’t like you” and “I
don’t want anything to do with you so I need you to stop.” 2 RR 69. There is no
evidence that Mr. Russo did not stop.
During this period of time Mr. Russo never threatened or assaulted Ms. Bernal.
2RR 113-114, 121-124. He never said anything obscene or sexual to her. 2 RR 122.
Nevertheless, Ms. Bernal threatened to file a report against him. 2 RR 69. Mr. Russo
said he thought they could stay friends. 2 RR 69.
Beginning around February 8, 2015, Mr. Russo listed some furniture for sale on
Craigslist 2 RR 71., posted a photo on social media of himself throwing oranges or
ice cream at a wall 2 RR 72., and posted something about wanting to kill himself 2
RR 72. On February 19, 2015, Mr. Russo resigned his position at KMID and moved
to the northeastern United States. 2 RR 114. Mr. Russo has not physically been in
the presence of Ms. Bernal since that time. 2 RR 114. It has been almost two-and-
a-half years since the two have been in the same room together, and since Ms. Bernal
block him from her personal Facebook and Twitter accounts 2RR 114, 115.
II. Communications between February 2015 and January 2017
In the sole text message conversation between Mr. Russo and Ms. Bernal between
February 2015 and February 2017, Ms. Bernal asked Mr. Russo not to communicate
with her anymore. 2 RR 12, 13; Exh 9. All other text message conversations
admitted into evidence were between Mr. Russo mutual friends. 3 RR22-40; Exh 14.
12 | P a g e Furthermore, all but one of Mr. Russo’s social media posts were sent to Ms.
Bernal by mutual friends or third parties. 2 RR 116. These included a random
assortment of posts from Mr. Russo’s Facebook account which include him talking
about missing Ms. Bernal, being sad, learning Spanish, improving his career,
learning how to dance, and becoming as physically strong as he could. 2 RR 89-90,
3 RR 6, 7, 9-11, 14-16, 22, 41-43; Exh 5, 7, 8, 10, 11, 12, 14, 15. Mr. Russo also
shared Ms. Bernal’s public work-related posts to his Facebook page. 2 RR 77. Mr.
Russo also “liked” and “shared” Ms. Bernal’s public news stories on a regular basis.
2 RR 77.
Finally, Mr. Russo made three comments on the public social media accounts
of Ms. Bernal’s co-workers. In the first, Mr. Russo states, “Ms. Bernal es un Buena
presentadora de noticias! And I have finally got to put the Spanish I’ve been learning
to good use! - I hope she gets promoted!” State’s Exh. 14. In the second, Mr.
Russo states, “Que es estol?” and mentions or tags one of the Twitter account of one
of Ms. Bernal’s co-workers. State’s Exh. 15. In the third, is Mr. Russo responds “No
esta bien!” to a “tweet” from one of her co-worker’s wherein the co-worker had
posted a picture of his broken phone. The comment did not mention or allude to Ms.
Bernal. State’s Exh. 15. As of the time of the hearing, both parties had continued to
communicate with their mutual friends. 2 RR 40-41.
13 | P a g e Ms. Bernal did not testify to any negative comments Mr. Russo had ever
communicated to her. 2 RR 123-125. In fact, Ms. Bernal said Mr. Russo has not
threatened or assaulted her or anyone in her family. Specifically, near the conclusion
of Ms. Bernal’s testimony, the following exchange occurred:
MR. SWAYZE: Okay, all right. And in the time that you were alone with him after the Superbowl or during that period of time that y’all were working alone at the station he never threatened you or threatened to assault you, he never assaulted you; correct?
MS. BERNAL: No.
MR. SWAYZE: Never grabbed you?
MR SWAYZE: Never groped you?
MR. SWAYZE: Never—you know, threatened a member of your family member or any of your members of your family?
MS. BERNAL No.
MR. SWAYZE: Never said anything like, if you don’t date me I’m going to hurt you?
MR. SWAYZE: In fact he was excited to see you?
MS. BERNAL: Yes.
MR. SWAYZE: In fact the comments that he’s directed towards you have always been positive?
14 | P a g e MS. BERNAL: I do not recall every single comment that has been made between the two of us. So I would not be able to answer you in terms of all the comments he has.
2 RR 123, 124.
In February of 2015, Mr. Russo resigned his position at KMID and moved from
Midland, Texas, to the northeastern area of the United States. 2 RR 58-59. Up until
the time of “The Lavaca Street Incident,” Mr. Russo had not been back to Texas in
two years. 2RR 35. Ms. Bernal swore under oath that she had not been in the physical
presence of Mr. Russo since that time. 2 RR 114.
III. The January 9, 2017, “Lavaca Street Bar Incident”
Mr. Pedro Morales is one of Ms. Bernal’s co-workers at Telemundo, a TV
broadcast network. On or about January 9, 2017, both Mr. Morales, and an unnamed
executive producer met for dinner after work at Lavaca Street Bar. 2 RR 151-152.
The bar is located in Austin at “The Domain,” a few miles away from the station.
The bar is also located within 5 miles of the hotel where Mr. Russo was staying
while in North Austin while visiting a friend in the area. 2 RR 31. Mr. Morales chose
to eat outside of the bar due to the noise inside. While Mr. Morales was waiting for
his dinner, Mr. Russo introduced himself and talked with Mr. Morales. 2RR 152.
The conversation between Mr. Morales and Mr. Russo was about work, Mr. Russo’s
pending tour of the local CBS & Telemundo affiliate, and Mr. Russo’s desire to
15 | P a g e move to Austin. R.R. 152. Mr. Russo’s tour of the station was scheduled a few days
later in the morning; Ms. Bernal worked in the evening. 2 RR 27.
IV. Officer McCloud’s Investigation in January of 2017
Two days after the “Lavaca Street Bar Incident,” the head of the local U.S.
Marshal’s Office asked the Austin Police Department if someone could look into a
possible stalking case that involved a reporter “that worked—did cases for the
marshals.” 2RR 9. The case was referred to APD Officer Mark McCloud. 2RR 8-9.
Officer McCloud met with Ms. Bernal in downtown Austin. 2RR 9. After their
meeting, Officer McCloud proceeded to the Sleep Inn Motel in North Austin on IH
35 service road southbound where he met with Mr. Russo. 2 RR 17. During that
meeting, Officer McCloud and Mr. Russo spoke for 45 minutes to an hour. 2 RR 20.
According to Officer McCloud, Mr. Russo discussed his connection with Ms.
Bernal, that the two had worked together in Midland, that he felt like Ms. Bernal was
the only woman for him, and that he has not met another woman that gives him
feelings the way that she does. 2 RR 20. Also, according to Officer McCloud, Mr.
Russo indicated that knew his romantic feelings were not reciprocated, but that he
was under the impression that they could be friends. 2 RR 20. Also according Officer
McCloud, Mr. Russo indicate that he would be flying out of Austin the next day and
proceeded to delete Ms. Bernal’s contact information from his phone in Officer
16 | P a g e McCloud’s presence. 2 RR 23. Officer McCloud did not believe that Mr. Russo was
attempting to see or communicate with Ms. Bernal or that he posed a threat to her
that night. 2 RR 24-25, 27. Rather, Officer McCloud believed that Mr. Russo was
trying slowly reintegrate himself back into Ms. Bernal’s life and posed a future threat
to her safety. 2RR 27.
On cross-examination, Officer McCloud admitted that he knew about the
“Lavaca Street Bar Incident” but that the Domain would be a logical place for a
person visiting a friend and staying in North Austin to go. 2 RR 31. Officer McCloud
also admitted that there was no evidence Mr. Russo followed Ms. Bernal’s co-
workers, and no co-workers ever witnessed Mr. Russo follow them. 2 RR 31-32.
Officer McCloud had no knowledge of video tape surveillance from the TV station,
nor did he check for any kind of security footage. 2 RR 32. The only information
that Officer McCloud had pertaining to the interaction between Mr. Morales and Mr.
Russo was that both were both present at the same bar and they discussed Mr. Russo
seeking employment at the same TV station where Ms. Bernal works; there was no
specific discussion of Ms. Bernal. 2 RR 33. Furthermore, Officer McCloud
admitted that although both parties worked for the same company, he had no
information that any threat, assault, or threat of assault has ever been perpetrated by
Mr. Russo against Ms. Bernal 2 RR 34.; no evidence or information that Mr. Russo
had ever threatened to harm Ms. Bernal’s family, friends, or property 2 RR 34-35.;
17 | P a g e and that he was unaware that the parties’ had not seen one another in almost two
years 2RR 35.
18 | P a g e SUMMARY OF THE ARGUMENT
Centered on what local newscaster, Maria Ms. Bernal, described as a fear that
Appellant Mr. Russo “could get to a point where he will hurt me or kill [me],” the
State of Texas obtained a civil “stalking” protective order on her behalf. Ms. Bernal’s
subjective fears resulted in a lifetime order prohibiting Mr. Russo from going within
200 yards of Ms. Bernal or communicating with her in any manner except through
attorneys.
The protective order was granted under, Tex. Code Crim. Proc. Code §7A,
which authorizes a lifetime protective order, if reasonable grounds exist to believe
the applicant is the victim of stalking as defined in Tex. Penal Code §42.072. The
order should be vacated as the evidence is legally and factually insufficient to
support the trial court’s findings that reasonable grounds exist to believe Ms. Bernal
has been the victim of stalking as defined by Tex. Code Crim. Proc. Art. 7A.03 and
Tex. Penal Code §42.072. There is no evidence that Mr. Russo threatened Ms.
Bernal in any way, or had otherwise intentionally committed repeated acts of
unwanted contact against her. The order’s restrictions are damaging to Mr. Russo’s
professional prospects. Mr. Russo, a meteorologist, and Ms. Bernal, a reporter, are
employed by the same company. The restrictions limit Mr. Russo’s mobility within
his company and his profession and will interfere with his career advancement by
limiting professional opportunities for the rest of his life.
19 | P a g e ARGUMENT
ISSUE ONE: Whether the evidence is factually and legally sufficient to justify the issuance of a permanent Stalking Protective Order against Mr. Russo where the State failed to present evidence of any threat to Ms. Bernal and failed to establish that Mr. Russo possessed the requisite mens rea as required by statute.
At the close of the hearing on the State’s request for a protective order against
Mr. Russo, Judge Michael Denton stated that he had heard testimony about “a lot
of” individual actions, but that his concern was the “continuum of actions” which all
had to be viewed “in context” because stalking is a crime about numerous acts.
Judge Denton noted that the parties’ respective arguments hinged on whether Mr.
Russo’s actions constituted a “threat” to Ms. Bernal. Judge Denton gave examples
of how context can change the meaning of an individual’s words or actions from
good or benign to threatening. Based upon his contextual analysis, Judge Denton
found that Mr. Russo’s words and/or actions constituted a threat to Ms. Bernal
despite the fact that there had been no actual statement of a threat. 2 RR 167-169
Wherefore, Judge Denton granted Ms. Bernal a lifetime protective order against Mr.
Russo. 2 RR 169-170. Mr. Russo filed a motion for new trial arguing, inter alia,
that the evidence was factually and legally insufficient to support the entry of a
stalking protective order under Texas Code of Criminal Procedure Art. 7A.03 and
Texas Penal Code § 42.072, and that the Court’s judgment was “contrary to the law
20 | P a g e and evidence.” (I CR 39-42. The Court denied the motion finding that “the standards
for granting a new trial were not met.” (I CR 50.
I. Applicable Legal Standards
A. Standard of Review on Direct Appeal
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. See Uniroyal Goodrich
Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998). When the trial court is a
factfinder, such as when it is making findings to determine whether to issue a
protective order, the court reviews the evidence supporting the protective order
under both legal and factual sufficiency standards. Shoemaker v. State for Protection
of C.L. 493 S.W.3d 710, 713 (Tex. Crim. App. 2016), citing In re Doe, 19 S.W.3d
249, 253 (Tex. 2000), Vongontard v. Tippit, 137 S.W.3d 109, 112 (Tex. App-
Houston [1st Dist.] 2004, no pet.). Under a legal sufficiency standard, the court
considers all of the evidence in the light most favorable to the prevailing party,
making every reasonable inference in that party’s favor, and disregarding contrary
evidence unless a reasonable factfinder could not. City of Keller v. Wilson, 168
21 | P a g e S.W.3d, 802, 827 (Tex. 2005); City of Houston v. Hildebrandt, 265 S.W.3d 22, 27
(Tex. App.-Houston [1st Dist.] 2008, pet. denied). If there is any evidence of
probative force to support the finding, i.e., more than a mere scintilla, the court will
overrule the issue. Hildebrandt, 265 S.W.3d at 27. Under a factual sufficiency
challenge, the court examines all of the evidence in the record and will set aside the
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); Kroger Co. v. Persley, 261 S.W.3d 316, 319 (Tex. App-Houston [1st
Dist.] 2008, no pet.); Richardson v. Estate of of Smith, No, 01-14-00034-CV, 2014
Tex. App. LEXIS 12333, 2014 WL 6068427, at *2 (Tex. App.-Houston [1st Dist]
Nov. 13, 2014, no pet.). The trier of fact is the exclusive judge of which facts have
been proven, which witness is credible, and the weight to be given any witness's
testimony. Turner v. KTRK Television, Inc., 38 S.W.3d 103, 134 (Tex. 2000); Benoit
v. Wilson, 150 Tex. 273, 239 S.W.2d 792, 796-97 (Tex. 1951). The court may draw
inferences from the facts and choose between conflicting inferences. Ramo, Inc. v.
English, 500 S.W. 2d 461, 467 (Tex.1973); Lakner v. Van Houten, No.01-09-00422-
CV, 2011 WL 1233381, at *3 (Tex. App. —Houston [1st Dist.] Mar. 31, 2011, no
pet.) (mem. op). An appellate court will not overturn a factfinder's determination
unless only one inference can be drawn from the evidence and it is counter to the
22 | P a g e factfinder's resolution of that issue. Havner v. E-Z Mart Stores, Inc., 825 S.W.2d
456, 461 (Tex. 1992).
B. Standard for Granting a Permanent Protective Order
At the close of a hearing on an application for a protective order the court shall
find whether there are reasonable grounds to believe that the applicant is the victim
of, e.g., stalking. See Tex. Code Crim. Proc. Ann. Art. §7A.03. 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 [harassment], or that the actor knows or reasonably should know the other person will regard as threatening: (A) bodily injury or death for the other person; (B) bodily injury or death for a member of the other person's family or household or for an individual with whom the other person has a dating relationship; or (C) that an offense will be committed against the other person's property;
(2) causes the other person, a member of the other person's family or household, or an individual with whom the other person has a dating relationship to be placed in fear of bodily injury or death or in fear that an offense will be committed against the other person's property, or to feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended; and
(3) would cause a reasonable person to: (A) fear bodily injury or death for himself or herself; (B) fear bodily injury or death for a member of the person's family or household or for an individual with whom the person has a dating relationship; (C) fear that an offense will be committed against the person's property; or
23 | P a g e (D) feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended.
See Tex. Pen. Code §42.072. Texas Penal Code § 42.07, referred to in subsection
(1) above, sets out the elements of the offense of harassment. A person commits the
offense of harassment if, with intent to harass, annoy, alarm, abuse, torment, or
embarrass another, the person:
sends repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another.
Tex. Penal Code § 42.07(a)(7). 1
In order to satisfy the elements of Tex. Pen. Code §42.072 the court views the
elements conjunctively; the State must prove Tex. Pen. Code §42.072(a)(1), (a)(2)
and (a)(3). See Ploeger v. State, 189 S.W.3d 799 (Tex. App.—Houston [1st Dist.]
2006, no pet.) (“[T]he trial court erred in charging the statutory elements
disjunctively, so that the charge allowed the jury to find appellant guilty upon finding
fewer than all of the elements of the offense of stalking”).
II. Mr. Russo did not commit the offense of stalking as defined by Texas Penal Code § 42.072 because the evidence is legally and factually insufficient.
Mr. Russo does not dispute that the State presented evidence to satisfy Tex. Pen.
Code §42.072(a)(2) and (a)(3), above. Nevertheless, Mr. Russo did not commit the
1 Subsections (1) through (6) are inapplicable to the instant facts and so are not included here.
24 | P a g e offense of Stalking as defined by Texas Penal Code § 42.072 because the evidence
is legally and factually insufficient as to Tex. Pen. Code §42.072(a)(1) under either
of the alternative manner and means.
A. There is not a scintilla of evidence that Mr. Russo committed the offense of harassment as defined in Tex. Penal Code § 42.07(a)(7).
Harassment requires the accused act with “intent” to “harass, annoy, alarm,
abuse, torment, or embarrass” another person. See Tex. Pen. Code § 42.07(a)
Furthermore, the only requirement of § 42.07(a) remotely applicable involves
subsection (a)(7), i.e sending repeated electronic communications in a manner
reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend
another. Read together, in order for Mr. Russo to “harass” Ms. Bernal, he needed
to send “electronic communications” in a manner “reasonably likely to harass, annoy
alarm, abuse, torment or embarrass” her, with the intent to actually carry out those
goals. A person acts intentionally, or with intent, with respect to the nature of his
conduct or to a result of this conduct when it is his conscious objective or desire to
engage in the conduct or cause the result. See Tex. Pen. Code §6.03.
Here, even viewing the evidence in the light most favorable to the State and Ms.
Bernal, the record is devoid of evidence that Mr. Russo sent Ms. Bernal “repeated
electronic communications” with the “intent” to “harass, annoy, alarm, abuse,
torment, or embarrass” her. In fact, the evidence is that during the entirety of their
acquaintance, Mr. Russo sent Ms. Bernal no more than two personal “electronic
25 | P a g e communications”: one to ask for help while he was hospitalized, and another which
resulted in Ms. Bernal asking him not to communicate with her any more. 2 RR 62-
63, 97 2 The only other “electronic communications” introduced into evidence were
either text messages between Mr. Russo and mutual friends, or social media posts
sent to Ms. Bernal by mutual friends or third parties. 3 RR6, 7, 9-11, 14-16, 22, 41-
43; Exh 5, 7, 8, 10, 11, 12, 14, 15. To the extent, if any, that “liking” Ms. Bernal’s
own public social media posts constituted “electronic communications” within the
meaning of the statute, there is nothing to indicate that Mr. Russo did so with any
nefarious intent. Moreover, there is nothing about Mr. Russo forwarding Ms.
Bernal’s own public social media posts on to others which would constitute
“communication” between Mr. Russo and Ms. Bernal. By way of comparison, if
Mr. Russo had read a book Ms. Bernal had written, then forwarded it to a third person
to read, such action would not constitute “communication” between Mr. Russo and
Mr. Bernal. Likewise there is nothing about Mr. Russo posting a “Throwback
Thursday” photo of himself at the anchor desk with Ms. Bernal in Midland as
“communication” between Mr. Russo and Ms. Bernal. In fact Ms. Bernal would not
have known about the photo post unless she had visited his Facebook page. Judge
2 Even assuming, without agreeing, that the State proved there were “repeated electronic communications” from Mr. Russo to Ms. Bernal, Ms. Bernal affirmed that Mr. Russo did not make any negative comments towards her. 2 RR 124-125. While a negative comment is not de facto necessary to “harass,” “annoy,” or “alarm,” it is to “abuse,” “torment,” or “embarrass.” Thus, if the State intends to rely on electronic communications between Mr. Russo and Ms. Bernal it cannot reasonably argue that Mr. Russo’s actions abused, tormented, or embarrassed her.
26 | P a g e Denton tacitly recognized that the State had not proved stalking by “harassment”
when, in rendering his order, he neither used the words “intentionally” or
“knowingly” to describe any of Mr. Russo’s actions, nor used the words “harass,”
“annoy,” “alarm,” “abuse,” “torment,” or “embarrass” as the purpose of Mr. Russo’s
actions. Under the harassment statute, Mr. Russo’s actions had to be consciously
nefarious to be criminal. They were not. Accordingly, to the extent the Court’s
order is based on Mr. Russo’s alleged “harassment” of Ms. Bernal, it is contrary to
both the law and evidence.
B. There is not scintilla of evidence that Mr. Russo otherwise engaged in conduct that he knew or reasonably should have known that Ms. Bernal would regard as threatening bodily injury, death, or damage to her property. Alternatively, the stalking statute provides that a person commits the offense
of stalking if, on more than one occasion and pursuant to the same scheme or course
of conduct that is directed specifically at another person, the person knowingly
engages in conduct that the actor knows or reasonably should know the other person
will regard as likewise threatening bodily injury, death, or an offense against
property. Tex. Pen. Code §42.072(a)(1). Accordingly, the first element of the
offense of stalking would also be satisfied if Mr. Russo had knowingly engaged in
conduct which he knew or reasonably should have known that Ms. Bernal would
regard as threatening bodily injury or death for her, for a member of her family or
27 | P a g e household, or for an individual with whom she has a dating relationship; or that an
offense will be committed against her property.
Here again, even viewing the evidence in the light most favorable to the State
and Ms. Bernal, the record is devoid of evidence that Mr. Russo had made any such
threat. None of the State’s witnesses testified to any threats whatsoever against Ms.
Bernal, against others affiliated with Ms. Bernal, or against Ms. Bernal’s property.
Quite to the contrary, a mutual friend, testified that Mr. Russo had not made any
threat towards Ms. Bernal. 2 RR 143 Furthermore, throughout her own testimony,
Ms. Bernal admitted that Mr. Russo had never threatened her or any member of her
family, or even just yelled at her. 2 RR 113,114,121-122, 124. Finally, Officer
McCloud’s investigation3 revealed no information that Mr. Russo had ever assaulted
or threated to assault Ms. Bernal, any of her close friends, or her property. 2 RR 34-
35. At the conclusion of Officer McCloud’s investigation, he neither arrested Mr.
Russo nor did he believe that Mr. Russo had committed any arrestable offense. 2 RR
24.
Given the overwhelming evidence of no threat, Judge Denton aptly conceded
that Mr. Russo had made no explicit or overt threat. 2 RR 169. (no doubt in judge’s
mind regarding absence of any threat(s)). Nevertheless, Judge Denton discussed
3 It is also worth repeating here that Officer McCloud only became involved in the situation because of Ms. Bernal’s close professional affiliation with the local U.S. Marshalls. 2 RR 8-9.
28 | P a g e certain statements and actions which he thought, in context, constituted an implicit
threat sufficient to prove stalking. Judge Denton’s analysis was in error.
According to the Penal Code, a person acts knowingly, or with knowledge,
with respect to the nature of his conduct or to circumstances surrounding his conduct
when he is aware of the nature of his conduct or that the circumstances exist. 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 cause the result. See Tex.
Pen. Code § 6.03. Here, there is no evidence that Mr. Russo knowingly engaged in
conduct that he knew or reasonably should have known that Ms. Bernal would regard
as threatening.
The fact that Mr. Russo “liked” and “shared” Ms. Bernal’s public -- not
private -- social media posts proves exactly nothing; such actions are ubiquitous,
especially amongst the millennial generation and even more so amongst media
professionals such as Mr. Russo and Ms. Bernal. Accordingly, even when viewed
in the light most favorable to the State and Ms. Bernal, it cannot be said that Mr.
Russo was aware that such actions were actually causing Ms. Bernal distress, or even
that they were reasonably certain to do so.
However, even assuming arguendo, that Mr. Russo was either aware of, or
reasonably should have been aware of, Ms. Bernal’s distress, the stalking statute
only prohibits his conduct if Ms. Bernal’s distress amounted to a predictable fear of
29 | P a g e bodily injury, death, or property damage. Tex. Pen. Code §42.072(a)(1). See
McGowan v. State, 375 S.W.3d 585 (App. 14 Dist. 2012). It did not. First, there
was no evidence of any prior unwanted physical contact between Mr. Russo and Ms.
Bernal -- despite the fact that they worked in close quarters, lived in the same
apartment complex, and ran in the same social circles. Neither had he threatened or
assaulted anyone in her family. 2 RR 124. Indeed the evidence was that Mr. Russo
had never committed any violent act. 2 RR 24. Second, Mr. Russo never said
anything obscene or sexual to her. 2 RR 122. Third, the record reveals that Mr. Russo
largely abided by Ms. Bernal’s wishes. When, in January of 2015, Ms. Bernal
declined Mr. Russo’s request to visit her at her apartment he did not, thereafter, go
to her apartment uninvited. 2 RR 64. When, later that same month, Ms. Bernal told
Mr. Russo that she didn’t want anything to do with him at all, he resigned his position
and moved to another state. 2 RR 58-59, 114. When, in November of 2016, Ms.
Bernal told Mr. Russo that she wanted him to leave her alone and never contact her
again, Mr Russo responded that if that’s what she wanted he would try his best.
State’s Exh. 9. And when, in January of 2017, Ms. Bernal learned that Mr. Russo
had returned briefly to Texas and intended to tour her new TV station, she sought
the assistance of legal authorities. After Officer McCloud visited with Mr. Russo at
his hotel, Mr. Russo left town without visiting the station. 2 RR 154. He did not
return. In short, there is no more than a scintilla of evidence to suggest that Mr.
30 | P a g e Russo could have predicted that his consistently non-violent conduct would cause
Ms. Bernal to fear that he would hurt her, hurt the people around her, or damage her
property. Such evidence is basically limited to the self-serving testimony of Ms.
Bernal that she did fear Mr. Russo and that Officer McCloud believed her.
The relatively recent case of McGowan v. State, 375 S.W.3d 585 (Tex. App.—
Houston [14th Dist.] 2012, pet. refused), provides an interesting and informative
point of comparison and contrast. In that case, McGowan was charged with the
felony offense of stalking. At trial, the State presented evidence that McGowan had
clearly not made any effort to abide by the complainant’s request for no contact or
communication. Instead he had continued making phone calls, leaving letters at her
workplace, and sending emails via her social networking page. More importantly,
McGowan had made multiple blog entries explicitly stating his desire to hurt the
complainant or those who helped her and on at least one occasion had been observed
peering through the windows of complainant’s home. Ultimately it was the
complainant, herself, who had been forced to change jobs and move just to get away
from him. Predictably, the Court of Appeals affirmed McGowan’s conviction. The
distinctions make a difference.
CONCLUSION AND PRAYER
The Trial Court erred in finding that legal and factual evidence was sufficient
to support the issuance of a lifetime Stalking protective order. The first element of
31 | P a g e the offense of Stalking was not satisfied. There was no evidence that Mr. Russo
committed the offense of Harassment; that he threatened serious bodily injury, death,
or damage to property; or even that he knew or reasonably should have known that
Ms. Bernal would regard his conduct as threatening the same. Wherefore, Mr. Russo
respectfully requests that this Court vacate the lifetime Stalking protective order and
grant such all other relief to which he is legally entitled.
[SIGNATURE ON NEXT PAGE]
32 | P a g e Respectfully Submitted,
CLIFFORD SWAYZE 1000 Heritage Center Circle ROUND ROCK, Texas 78664 Tel: (512) 335-5245 Fax: ((512)) 857-0762
By____________________________ ____________ ________________ Clifford Cliff d Swayze S State Bar No. 24044245 caswayze22@gmail.com Attorney for Appellant
CERTIFICATE OF SERVICE
I hereby certify that on December 13, 2017, the foregoing document was served electronically on counsel of record as set forth below:
Jenny Anderson SBN 24027197 Hilary L. Riley SBN: 24013404 P.O. Box 1748 Austin, Texas 78767 TEL: (512)-854-4163 FAX: (512)-854-9570
_______________ __________ ____ ___ Clifford Cliff d Swayze S
CERTIFICATE OF COMPLIANCE As required by Texas Rule of Appellate Procedure 9.4(i)(3). I certify that this brief contains no more than 6,612 words, excluding the parts of the brief exempted by Rule 9.4(i)(1).
_______________ _________________ Clifford Swayze Sw wayzze
33 | P a g e Appendix
Tex. Code Crim. Proc. Ann. Art. §7A.03………………………...APPENDIX 1
Tex. Pen. Code §42.072………………………………………… .APPENDIX 2
Tex. Pen. Code §42.07………….……………………………….. APPENDIX 3
Protective Order ……………………………………………...…. APPENDIX 4
Findings of fact and Conclusions of law……………………........APPENDIX 5
34 | P a g e APPENDIX 1 Art. 7A.03. REQUIRED FINDINGS; ISSUANCE OF PROTECTIVE ORDER. (a) At the close of a hearing 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 sexual assault or abuse, stalking, or trafficking. (b) If the court makes a finding described by Subsection (a), the court shall issue a protective order that includes a statement of the required findings. APPENDIX 2 Sec. 42.072. STALKING. (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 the other person will regard as threatening: (A) bodily injury or death for the other person; (B) bodily injury or death for a member of the other person's family or household or for an individual with whom the other person has a dating relationship; or (C) that an offense will be committed against the other person's property; (2) causes the other person, a member of the other person's family or household, or an individual with whom the other person has a dating relationship to be placed in fear of bodily injury or death or in fear that an offense will be committed against the other person's property, or to feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended; and (3) would cause a reasonable person to: (A) fear bodily injury or death for himself or herself; (B) fear bodily injury or death for a member of the person's family or household or for an individual with whom the person has a dating relationship; (C) fear that an offense will be committed against the person's property; or (D) feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended. (b) An offense under this section is a felony of the third degree, except that the offense is a felony of the second degree if the actor has previously been convicted of an offense under this section or of an offense under any of the following laws that contains elements that are substantially similar to the elements of an offense under this section: (1) the laws of another state; (2) the laws of a federally recognized Indian tribe; (3) the laws of a territory of the United States; or (4) federal law. (c) For purposes of this section, a trier of fact may find that different types of conduct described by Subsection (a), if engaged in on more than one occasion, constitute conduct that is engaged in pursuant to the same scheme or course of conduct. (d) In this section: (1) "Dating relationship," "family," "household," and "member of a household" have the meanings assigned by Chapter 71, Family Code. (2) "Property" includes a pet, companion animal, or assistance animal, as defined by Section 121.002, Human Resources Code. APPENDIX 3 Sec. 42.07. HARASSMENT. (a) A person commits an offense 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; (2) 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 of the person's family or household, or the person's property; (3) conveys, in a manner reasonably likely to alarm the person receiving the report, a false report, which is known by the conveyor to be false, that another person has suffered death or serious bodily injury; (4) causes the telephone of another to ring repeatedly or makes repeated telephone communications anonymously or in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another; (5) makes a telephone call and intentionally fails to hang up or disengage the connection; (6) knowingly permits a telephone under the person's control to be used by another to commit an offense under this section; or (7) sends repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another. (b) In this section: (1) "Electronic communication" means a transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photo-optical system. The term includes: (A) a communication initiated through the use of electronic mail, instant message, network call, a cellular or other type of telephone, a computer, a camera, text message, a social media platform or application, an Internet website, any other Internet-based communication tool, or facsimile machine; and (B) a communication made to a pager. (2) "Family" and "household" have the meaning assigned by Chapter 71, Family Code. (3) "Obscene" means containing a patently offensive description of or a solicitation to commit an ultimate sex act, including sexual intercourse, masturbation, cunnilingus, fellatio, or anilingus, or a description of an excretory function. (c) An offense under this section is a Class B misdemeanor, except that the offense is a Class A misdemeanor if: (1) the actor has previously been convicted under this section; or (2) the offense was committed under Subsection (a)(7) and: (A) the offense was committed against a child under 18 years of age with the intent that the child: (i) commit suicide; or (ii) engage in conduct causing serious bodily injury to the child; or (B) the actor has previously violated a temporary restraining order or injunction issued under Chapter 129A, Civil Practice and Remedies Code. APPENDIX 4 APPENDIX 5