State for Protection of P. B. v. v. T.

575 S.W.3d 921
CourtCourt of Appeals of Texas
DecidedMay 16, 2019
DocketNO. 03-18-00472-CV
StatusPublished
Cited by12 cases

This text of 575 S.W.3d 921 (State for Protection of P. B. v. v. T.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State for Protection of P. B. v. v. T., 575 S.W.3d 921 (Tex. Ct. App. 2019).

Opinion

Gisela D. Triana, Justice

The State of Texas appeals from the district court's order denying the State's *923application, filed on behalf of P.B., for a permanent protective order against appellee V.T., P.B.'s ex-boyfriend. See Tex. Code Crim. Proc. art. 7A.03. On appeal, the State asserts that the district court abused its discretion in failing to make adverse inferences against V.T. following his invocation of the Fifth Amendment privilege against self-incrimination and that there is insufficient evidence to support the district court's denial of the protective order. We will affirm the district court's order.

BACKGROUND

In an affidavit that was attached to the State's application for a protective order, P.B. averred that she and V.T. had been in an "intimate relationship" from May 2017 until December 2017 and that during that time, she had "allowed [V.T.] to take a few photographs of [her] while [she] was naked and take some videos of [V.T. and P.B.]" together. P.B. claimed that when she told V.T. that she wanted to end their relationship, he threatened to post and distribute online the videos and images of P.B. that he had in his possession unless she agreed to delete her online dating profile and have sex with him. P.B. stated that she agreed to have sex with V.T. "out of fear that he would follow through on his threats to post the pictures." P.B. further averred that when P.B. again attempted to end their relationship approximately two months later, V.T. renewed his threat to release the photographs. Additionally, P.B. claimed, V.T. had impersonated her online, posting an advertisement on Craigslist stating that P.B. "was looking for male company that night" and had "videos for proof." According to P.B., V.T. later texted her and apologized for posting the advertisement.

Based on the above allegations, the district court granted a temporary protective order on February 1, 2018, and set a hearing for February 16, 2018, on the State's request for a permanent protective order. After several resets of the hearing and extensions of the temporary protective order, the hearing was held on June 27, 2018.1 However, on the morning of the hearing, the State sought a further extension because P.B., according to the prosecutor, was out of town on a "planned trip" that she had booked months earlier. Counsel for V.T. opposed the extension, arguing that V.T. was ready to proceed and that while "the alleged victim is on vacation," they were "here worried about this protective order." The district court denied the request for an extension, observing that the State "got this setting" and that "they ought to be ready to go."

The hearing was held that afternoon. Initially, the State asked the district court to take judicial notice of P.B.'s affidavit, summarized above, setting forth the specific allegations against V.T. Counsel for V.T. objected to the affidavit as hearsay, and it was not admitted into evidence. The State then called Detective Rebekah Coons of the Comal County Sheriff's Office, who testified that she had investigated V.T. for the offense of online impersonation. Detective Coons explained that she had reviewed a post on Craigslist that "made it look like [P.B.] had posted the ad looking for company for the night." Coons added that during the investigation, P.B. had given her text messages and emails from V.T. in which V.T. had apologized for posting the ad. Coons believed that it was "more likely than not it was [V.T.] who had sent the messages." The State also asked Coons if she believed that V.T. was responsible for online impersonation, and she answered in the affirmative. Counsel for V.T. objected to the lack of foundation *924for this testimony, arguing that "[t]here's no information provided as to how she drew these conclusions." Although the district court implicitly overruled the objection by "allowing [the State] to put forth this testimony," it noted that the testimony was "rather conclusory" and that it had "no foundation to base the conclusions." Finally, Coons testified that she had submitted a case against V.T. to the district attorney's office for the offense of online impersonation. The State did not elicit any further testimony from Coons pertaining to the status of that case.

Finally, the State called V.T. After counsel informed the district court that V.T. was "just going to plead the Fifth the whole time," the district court advised V.T. that although he had a "constitutional Fifth Amendment right to remain silent," exercising that right could be held against him in this civil proceeding. V.T. indicated that he understood that risk, and the State then proceeded to ask him numerous questions concerning his past relationship with P.B. and her specific allegations against him. As we discuss in more detail below, in response to each question, V.T. answered, "I would like to plead the Fifth." The State presented no further evidence.

At the conclusion of the hearing, the district court denied the application for a permanent protective order against V.T. and later made findings of fact and conclusions of law. In its findings, the district court indicated that it did not consider either P.B.'s affidavit or her absence from the hearing in reaching its decision. Nevertheless, the district court also found that "absent [P.B.'s] live testimony, which would have given [V.T.'s] attorney an opportunity for cross-examination, the evidence proffered at the June 27, 2018, hearing was insufficient to show that [P.B.] is the victim of sexual assault or abuse, stalking, or trafficking." Additionally, although the district court found certain testimony by Detective Coons to be "credible and true," it also found that her "testimony, in and of itself," was insufficient to support the issuance of a protective order. Specifically, the district court found that "Detective Coons did not offer a sufficient evidentiary foundation for the text messages she referenced at the hearing" and that "the text messages attributed to [V.T.] are not a sufficient basis for a protective order." Finally, the district court made two adverse inferences against V.T. based on V.T.'s invocation of his Fifth Amendment privilege, finding that V.T. knew P.B. and that he had a relationship with her. However, the district court declined to make any other adverse inferences against V.T. The district court ultimately found that "there are not reasonable grounds to believe that P.B. was the victim of sexual assault or abuse, stalking, or trafficking," "due to the lack of admissible evidence and/or testimony relevant thereto." This appeal by the State followed.

STANDARD OF REVIEW

We review a trial court's decision to grant or deny a Chapter 7A protective order for legal and factual sufficiency of the evidence. See Webb v. Schlagal , 530 S.W.3d 793, 802 (Tex. App.-Eastland 2017, pet. denied) ; Shoemaker v. State , 493 S.W.3d 710, 714-15 (Tex. App.-Houston [1st Dist.] 2016, no pet.) ; Garcia v. Tautenhahn ,

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575 S.W.3d 921, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-for-protection-of-p-b-v-v-t-texapp-2019.