Netaji v. Roberts

• Decision Date: 12 November 2021
• Docket Number: 03-19-00840-CV
• Parties: Ram Kris Netaji, Appellant v. Vicki Roberts, Appellee
• Court: Court of Appeals of Texas

Ram Kris Netaji, Appellant v. Vicki Roberts, Appellee

No. 03-19-00840-CV

Court of Appeals of Texas, Third District, Austin

November 12, 2021

FROM THE COUNTY COURT AT LAW NO. 4 OF TRAVIS COUNTY NO C-1-CV-17-005584, THE HONORABLE BOB PERKINS, JUDGE PRESIDING

Before Chief Justice Byrne, Justices Baker and Triana

MEMORANDUM OPINION

Darlene Byrne, Chief Justice

Ram Kris Netaji challenges a lifetime protective order entered against him and for the protection of Vicki Roberts and her family under Chapter 7A of the Texas Code of Criminal Procedure, which authorizes a trial court to issue a protective order for someone that the trial court has reasonable grounds to believe is the victim of stalking.^[1] Roberts filed for the protective order on June 9, 2017, in response to Netaji's conduct from 2013 to 2017. After an evidentiary hearing, the trial court signed the protective order prohibiting Netaji from, among other things, possessing a firearm or ammunition and living in a household where those items are present.^[2]

In seven issues, Netaji contends that the trial court erred by issuing a protective order that he alleges imposes unconstitutional restrictions on his rights to freedom of speech and to possess a firearm. Specifically, he contends that:

• the stalking statute was declared unconstitutional in 1996 by the Court of Criminal Appeals;

• the stalking statute is facially unconstitutional;

• the protective order is an unconstitutional prior restraint on his speech;

• the stalking statute is unconstitutional as applied to him because his comments were not threatening, assaultive, or violent;

• his repeated comments on a business Facebook page are not stalking as a matter of law and were insufficient for issuance of the protective order;

• inadmissible hearsay affected the outcome of the proceeding; and

• Chapter 7A of the Code of Criminal Procedure violates his right to possess a firearm in his home. We will affirm the trial court's protective order.

BACKGROUND

Evidence presented to the trial court during the protective-order application hearing showed that Netaji's conduct toward Roberts and her family had continued for years, beginning in 2013 when Netaji became upset about the payment for his requested reprogramming of several vehicle keys at a Lexus dealership that Roberts owned. Netaji frightened employees and customers at the dealership when he began pacing, going down a hallway speaking to different people, screaming profanities, and spitting on a cashier while speaking to her.^[3] After his outburst, Roberts banned Netaji from the dealership.

Using multiple aliases and fake accounts that law enforcement later linked to Netaji by IP address, ^[4] Netaji subsequently made 301 posts to Facebook sites for the dealership, for charitable and community organizations in which Roberts and her 82-year-old mother volunteered, and for businesses owned by Roberts's daughter-in-law or the daughter-in-law's family. The posts consisted of repetitive statements that Roberts-who had no criminal history-belonged on a sex-offender registry and allowed her stepson and others to "[b]ully, [h]arass, and assault a young disabled [c]ustomer." These posts also said, "For a company that is involved with helping abused children they should be ashamed. They have no business being involved with any children. They all belong in a maximum[-]security prison." Roberts testified at the protective-order hearing that Netaji's posts also accused her mother, a founder of the Center for Child Protection, of being a child molester.

In other posts to the dealership Facebook site, Netaji made these comments about Roberts and her daughter, A.A.^[5]:

• GO F[-] YOURSELF AND YOUR SHRIVELED UP P[-]. YOU LOOK LIKE A TRANSEXUAL WITH YOUR HAIRCUT AND SMELL LIKE A SEWER. NO WONDER YOU WENT THRU 3 DIFFERENT HUSBANDS.

• [A.A.] OWNERS DAUGHTER F[-] FORMER SALESMAN . . . THE BIG FAT B[-] HAS TO F[-] A SALESMAN MAYBE SHE MOVING ON TO THE PORTERS NOW.

• VICKI ROBERTS LOOKS LIKE A TRANSEXUAL. MOST MEN HAVE MORE HAIR THAN HER . . . PROSTITUTES HAVE F[-] LESS MEN THAN SHE HAS.

• VICKI ROBERTS IN MY OPINION IS A W[-]. LOOKS LIKE A TRANSEXUAL. HER DAUGHTER F[-] A SALESMAN. THEY PULL OFF THE SHOWROOM FLOOR.^[6]

Netaji also made other postings about A.A. Roberts testified that in those posts, Netaji noted when A.A. had gained or lost weight, what she was wearing, where she was, and whom she was dating. After Netaji posted that he was at the university that A.A. was attending, A.A. became scared and moved back home. Netaji also posted to the Facebook site for A.A.'s employer, stating that A.A. was "like the Columbine killers" and a threat to employees and customers while working there.

In addition to his posts on several Facebook sites, Netaji sent multiple direct communications by Facebook messenger to Roberts and her family members, including A.A. and her friends.^[7] Some of Netaji's instant messages to Roberts-sent under an alias linked to him-said, "KARMA IS A BITCH AND YOU ARE GETTING EXACTLY WHAT YOU DESERVE" and "KARMA IS A BITCH. I HOPE YOU REMEMBER THAT."

Netaji's expressed intentions frightened his sister-in-law, who testified at the protective-order hearing about a group text that Netaji sent to her and her husband in which Netaji threatened to commit a mass shooting at the dealership and sent photos of himself "driving on the way" there. The group text-sent after the trial court had issued a temporary order against Netaji-was admitted into evidence, containing these statements:

• I will go drive the car into the dealership showroom . . . And kill someone there;

• Watch and see;

• I will kill them;

• Get a[n] assault rifle and shoot at them 'til[] they are all dead;

• Make it the largest mass shooting in history;

• I will kill as many as I can;

• I'm stopping at Lowe's to buy a[n] axe;

• I decided to just crash into the building; and

• No need for a[n] axe.

A photo of the Lexus of Austin dealership was included above the caption, "I will kill them." The sister-in-law testified that Netaji "sent those scary texts"; that "he was at the location getting ready to do something, so it was scary"; and that she was concerned that Netaji would harm "people in the dealership" and Roberts.

Finally, Roberts testified about two road-rage incidents in 2016 and 2017 while "driving north on 360, which is [her] way to work," in which Netaji confronted her while they were both driving on Highway 360. During those incidents, Roberts saw Netaji driving aggressively behind and beside her vehicle, "boxing [her] around and speeding up and then throwing on his brakes," "riding [her car's] bumper," honking his horn at her, flashing his car's lights, "flipping her off," and appearing to photograph her with his phone. But Roberts explained that she was not fearful about everything Netaji did, such as when he set up Facebook pages called "Lexusof AustinSucks" and "Lexusof LakewaySucks." Rather, it was

when he started personalizing it to my daughter and showing who she was dating and the personal comments about my mother and my family and the photos of employees and their daughters. And just it was personal, it took it away from a business complaint and more into, he knows what's happening in our lives. He's watching what we're doing.

Roberts testified that Netaji's conduct continued after he lost a civil suit that he filed against her and despite cease-and-desist letters sent to him. She discussed her fear of Netaji, stating that he knows where she lives, that she is "scared to death," and that she "live[s] in fear daily." She noted that she sold the dealership that had been in her family for three generations because she was losing employees and could not keep them safe. She also feared being unable to protect her daughter if she took over the business: "[T]here's no way I could have her . . . there as a sitting duck I just couldn't do it. So we're done. He wins." Because of Netaji, Roberts hired full-time security guards for herself and overnight security for her daughter.

Two weeks after the evidentiary hearing, the trial court heard objections to its proposed protective order. During the latter hearing, Netaji's counsel made an oral request for findings of fact and conclusions of law "under Rule 296 of the Texas Rules of Civil Procedure." Cf. Tex. R. Civ. P. 296 (requiring "filed" request for findings of fact and conclusions of law). When findings and conclusions were not entered, Netaji's counsel failed to file any notice of past due findings and conclusions. See id. R. 297; see also Ad Villarai, LLC v. Chan Il Pak, 519 S.W.3d 132, 137 (Tex. 2017) (noting that party waives right to challenge lack of trial-court findings if party fails to file notice of past-due findings required by Rule 297). On October 11, 2019 the trial court signed the protective order that Netaji appeals here.

DISCUSSION

Netaji's seven appellate issues involve the intersection of several statutes, including those governing the issuance of protective orders under Chapter 7A and defining the offenses of stalking and harassment. We summarize the applicable legislation below.

Protective Orders for Stalking Under Chapter 7A

Chapter 7A of the Code of Criminal Procedure authorizes a trial court to issue a protective order "without regard to the relationship between the applicant and the alleged offender" if the trial court finds that the applicant is a victim of certain crimes, including stalking. See Tex. Code Crim. Proc. arts. 7A.01(a)(1), .03. Before 2013 subsection 42.072(a) of the Penal Code defined the offense of stalking as committing threatening conduct that causes the victim to fear bodily injury or death for himself, his family member, or his dating partner; or to fear that...