Kloecker v. Lingard

• Decision Date: 25 May 2021
• Docket Number: NO. 01-19-00533-CV,01-19-00533-CV
• Parties: BRENT ADAM KLOECKER, Appellant v. IRINA LINGARD, Appellee
• Court: Texas Court of Appeals

BRENT ADAM KLOECKER, Appellant v. IRINA LINGARD, Appellee

NO. 01-19-00533-CV

Court of Appeals For The First District of Texas

May 25, 2021

On Appeal from the 280th District Court Harris County, Texas

Trial Court Case No. 2019-10147

MEMORANDUM OPINION

Appellee Irina Lingard sought a protective order against appellant Brent Kloecker to protect both herself and her minor son. After a hearing, the trial court granted the protective order pursuant to Code of Criminal Procedure Chapter 7A for a duration of twenty-five years. Among other things, this order prohibited Kloecker from possessing a firearm for the duration of the order.

In three issues on appeal, Kloecker contends that the trial court erred by (1) adding twenty years to the duration of the protective order based solely on the fact that, during the pendency of the case, he allegedly made a report to Child Protective Services (CPS) concerning Lingard; (2) failing to grant his motion to modify the protective order to reduce its duration and failing to grant his motion for new trial to allow the court to consider the actual CPS report; and (3) denying his facial and as-applied challenges to the constitutionality of Code of Criminal Procedure Chapter 7A. We affirm.

Background

Lingard and her ex-husband divorced in November 2017. They have one son, A.N.L. (Alan),¹ who was thirteen years old at the time of the hearings in this case. Shortly after her divorce, Lingard met Kloecker in December 2017 through an online dating app called Bumble. They began a sexual relationship in January 2018, which lasted until June 2018. Alan has never met Kloecker In June 2018, Lingard traveled to Armenia for a month-long mountaineering expedition while Alan visited Lingard's parents in Russia. Lingard asked Kloecker if he would take care of Alan's pet guinea pig while they were gone, and he agreed.

While she was in the mountains, Lingard did not have consistent access to Internet or cellular service. Kloecker became frustrated when Lingard did not quickly respond to his emails and text messages. He started sending messages accusing her of not loving him and threatening to "get rid of that rat," referring to Alan's guinea pig. Kloecker also sent Lingard messages threatening to show Alan videos of Kloecker and Lingard having sex. He also threatened to tell "the entire city of Houston" about Lingard, her son, her ex-husband, and her behavior towards Kloecker if she did not respond to his messages within a certain time period. Kloecker also sent numerous messages begging for forgiveness, blaming Lingard for ruining his life, and threatening to commit suicide.

Lingard returned to Houston at the end of June. When she returned, Lingard discovered that someone had spray-painted the word "whore" on her garage door. Kloecker acknowledged his responsibility for this and offered to pay to repaint the garage door. Lingard never saw Alan's guinea pig again. Kloecker told her different stories about what happened to the guinea pig. At one point, he stated that he took the guinea pig to a local pet store and placed it for adoption. At another point, hestated in a text message that he killed the guinea pig by throwing it into a dumpster on a hot day.

Lingard briefly rekindled her relationship with Kloecker in July 2018. They dated for approximately seven more weeks before Lingard permanently ended the relationship in September 2018. During this time, Kloecker continued to send Lingard messages berating her, blaming her, and calling her derogatory names. He also continued to send messages threatening to commit suicide. In one message, he asked Lingard to pull the trigger for him. He sent messages threatening violence against her, Alan, and police officers. One of these messages, from mid-September, stated:

Also, my place is now under surveillance. If any uniformed thugs show up at my place or confront me at any point in the future, then again it is out of my hands and it will be a guarantee. Don't let your son and you get hurt. Be here tonight at 8 p.m. sharp.

Lingard was aware that Kloecker owned a firearm. When she asked Kloecker why he had purchased a gun, he stated: "Out of fear. For self-defense & control (of my own life in case uniformed thugs come after me). They will not take me alive. And of course for the option to opt out if I were to choose that." Lingard asked Kloecker on multiple occasions to stop contacting her, but he refused.

On two instances in October 2018 and January 2019, Lingard returned to Houston from a trip and discovered that her home had been vandalized.² In October, her glass door was shot with a BB gun and broken. In January, her window was shot with a BB gun, and black paint was thrown on one of the exterior walls. Lingard believed Kloecker was responsible because she had received messages from him about the possibility of breaking and shooting her windows. Lingard contacted the police on both occasions, but no charges were filed.

Around the beginning of 2019, Lingard discovered that someone had posted disparaging reviews about her on websites related to her employers. These reviews were not posted under Kloecker's name. However, Lingard believed that Kloecker wrote them "[b]ecause he had the reasons to embarrass and threaten [her] reputation," and because the reviews used similar language and insults that Kloecker had used in previous messages.

In February 2019, Lingard contacted the Harris County District Attorney's Office concerning Kloecker's behavior, and a caseworker in that office assisted her with applying for a protective order. Lingard alleged that Kloecker had engaged in family violence, as defined by the Family Code. She further alleged that Kloeckerhad engaged in stalking and harassment, which justified a protective order under Code of Criminal Procedure Chapter 7A. Lingard completed an affidavit setting out her reasons for requesting a protective order. The trial court admitted this affidavit into evidence.

On February 11, 2019, the trial court granted a temporary ex parte protective order and set the protective order for a hearing on March 6, 2019. This hearing was later reset to March 28, 2019.

The day before the protective order hearing, Kloecker filed a facial and as-applied challenge to the constitutionality of Code of Criminal Procedure Chapter 7A. Kloecker argued that this chapter, which allows a court to issue a protective order prohibiting a respondent from possessing a firearm for the duration of the order, violated his fundamental right to possess a firearm guaranteed by the Second Amendment. The trial court denied this challenge.

The trial court heard the majority of Lingard's testimony on March 28, but it recessed the proceedings until a later date. The hearing resumed on April 17, 2019. Lingard testified that, during the interim time between the two hearing dates, Kloecker filed a CPS report against her. The trial court admitted into evidence an email that Kloecker sent to Lingard's ex-husband on March 29, 2019. This email was entitled, "Brent Vs. Irina in the Interest of [Alan] = CPS Report." In this email, Kloecker informed Lingard's ex-husband of the name and telephone number of aCPS caseworker. Kloecker stated, "He called me and said he will be contacting you soon." Lingard's ex-husband forwarded this email to Lingard.

Lingard testified that she had been contacted by a CPS caseworker. She stated that she had never been contacted or questioned by CPS before, and she had an appointment with a caseworker scheduled for the day after the hearing. Lingard stated that Kloecker had never been around her and Alan together, and he had never been around Alan alone. Lingard characterized Kloecker's CPS report as false.

Lingard stated that she wanted the protective order to last for at least five years to protect both her and Alan until he was an adult.

At the close of the hearing, the trial court stated its findings on the record. The trial court found that family violence had occurred; Kloecker had engaged in conduct that constituted both harassment and stalking, and therefore a protective order was justified under Code of Criminal Procedure Chapter 7A; and Kloecker's conduct warranted a protective order for longer than the typical two-year period. The trial court specifically mentioned several aspects of Kloecker's behavior that it found disturbing, including Kloecker's insistence on contacting Lingard after she requested that he stop contacting her, the statements that he made concerning what he did to Alan's guinea pig, the alleged vandalism to Lingard's home, and the alleged negative online reviews. The trial court also stated:

That you would also contact her ex-husband and tell him that you have contacted Child Protective Services on her even after this Court had atemporary protective order in effect. Why you would do that, I don't know. I don't know. But that tells me you're not over this lady, and that tells me that this Court has to protect her and to protect her son.

Therefore, I am going to go grant a protective order for Ms. Lingard for a period of 25 years. And that is also going to include her son. I would grant it for a lifetime, but Ms. Lingard was willing to do a five-year protective order until her son is 18. However, based on your conduct between the last time we were here [the March 28 hearing] and we're here now by contacting Child Protective Services, I am going to add on an additional 20 years just to try to do my best to keep Ms. Lingard and her son safe.

In the written protective order, the court included findings that family violence had occurred and would likely occur in the future. The court found that there were reasonable grounds to believe that Kloecker had engaged in conduct that would be considered a felony if charged, namely stalking and harassment. The court also found that stalking and harassment "are likely to occur again in the future." The court prohibited Kloecker from communicating with Lingard and her son and...