Perez v. State, 08-15-00253-CR
| Decision Date | 11 May 2017 |
| Docket Number | No. 08-15-00253-CR,08-15-00253-CR |
| Parties | SERGIO PEREZ, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
Appeal from County Court at Law No. 4 of El Paso County, Texas
(TC # 20130C07785)
Appellant was convicted of the Class A misdemeanor offense of violating a protective order. TEX.PENAL CODE ANN. § 25.07(a)(2)(A)(West Supp. 2016). The predominant theme of this appeal is that the protective order was void, and that a person cannot be criminally responsible for violating a void order. Additionally, Appellant claims that the statute under which he was convicted violates his First Amendment rights to free speech. Finding no error, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant is Laura Robles's ex-boyfriend. She filed an application for a protective order in the 65th District Court following an alleged altercation after their break-up. Appellant appeared at the hearing on the application without counsel. The hearing resulted in what is denominated as an agreed protective order dated May 2, 2012. Relevant here, it prohibited Appellant from communicating directly with Ms. Robles in a threatening or harassing manner, or engaging in conduct directed at her that is reasonably likely to harass, annoy, alarm, abuse, torment, or embarrass. The agreed order recites that the court had jurisdiction over the parties and subject matter jurisdiction over the proceeding. In issuing the order, the court found that it was in the best interest of the Applicant or a member of the family or household. The court did not make any findings of prior family violence, nor the likelihood of future family violence (and those findings were specifically struck through on the pre-printed form order). Appellant agreed to the order both as to form and substance. The order also contains an admonition in all capital letters that it is in full force and effect unless a court changes the order, and violation of the order may be punishable by fine or imprisonment.
In this criminal proceeding, the State's information alleges that on June 9, 2012, Appellant violated the protective order by intentionally and knowingly communicating directly with Ms. Robles in a threatening or harassing manner. Prior to trial, Appellant filed a pretrial application for habeas corpus asserting that the agreed protective order was void. As we explain in more detail below, the application asserted that the 65th District Court did not make a finding that there had been prior family violence, and Appellant contends that such was required for the protective order to be issued. The trial court denied the application, and Appellant filed a mandamus with this court challenging that ruling. In our opinion denying mandamus relief, we noted Appellant (there appearing as Relator) must show "that he has no adequate remedy at law and that what he seeks to compel is a ministerial act." In re Perez, 08-15-00188-CR, 2015 WL 4038711, at *1 (Tex.App.--El Paso July 1, 2015)(orig. proceeding) citing In re State ex rel.Weeks, 391 S.W.3d 117, 122 (Tex.Crim.App. 2013). We concluded that Appellant had failed to meet that burden.
The case proceeded to trial. The State presented its case through Ms. Robles, her aunt, and a police officer. The evidence supported the State's theory that on June 9, 2012, Appellant arrived at a birthday party for Ms. Robles's thirteen-year-old daughter at the pool area of the Chase Suites Hotel. Ms. Robles was standing near the pool with a man, both watching their children swim. Appellant approached her, exclaiming "Oh, so this is the one you're f--king now?" Appellant appeared intoxicated. He proceeded to shout at Ms. Robles, referring to her as a whore, a bitch, a slut, and a poor excuse of a woman. Ms. Robles testified that he tried to push and grab her, and at one point said The hotel manager and other guests eventually convinced Appellant to leave. Ms. Robles's daughter overheard the vulgarities and threats, and the party ended abruptly when hotel management asked everyone to leave.
Appellant testified at trial and presented a far different story. He claimed that Ms. Robles had come to his house that morning and told him about the party and that she had dropped the protective order. She had somehow taken his keys and he went to the party to retrieve them. He denied making any of the statements attributed to him, or threatening her. The jury apparently believed Ms. Robles's account and returned a guilty verdict. Based on the jury's recommendation of a fine only, the trial court assessed a $2,500 fine and no jail time.
ISSUES ON APPEAL
Appellant brings four issues for review. The common thread in the first three issues is that the underlying protective order is facially void. Issue One contends the evidence is legally insufficient to convict because the protective order was void. Issue Two likewise contends thetrial court lacked subject matter jurisdiction because the earlier protective order was void. Issue Three contends the trial court erred in overruling his motion for directed verdict for the same reason. We will address these issues together.
Issue Four contends that the criminal statute upon which the protective order is based violates the First Amendment to the United States Constitution, both on its face and as applied.
THE PROTECTIVE ORDER PROVIDED A SUFFICIENT BASIS
TO SUSTAIN THE CONVICTION
Appellant was convicted of violating a protective order issued pursuant to Chapter 85 of the Texas Family Code. Under that chapter "[a] court shall render a protective order as provided by Section 85.001(b) if the court finds that family violence has occurred and is likely to occur in the future." TEX.FAM.CODE ANN. § 81.001 (West 2014). A protective order proceeding begins with the filing of an application. Id. at § 82.001. Thereafter, the court must set an expedited hearing. Id. at § 84.001. At the close of the hearing, the court "shall find" whether family violence has occurred and is likely to occur in the future. Id. at § 85.001(a)(1)(2). "If the court finds that family violence has occurred and that family violence is likely to occur in the future, the court . . . shall render a protective order as provided by Section 85.022" as against the person found to have committed family violence. Id. at § 85.001(b)(1). A protective order under Section 85.022 can among other things prohibit a "person found to have committed family violence" from communicating with the applicant "in a threatening or harassing manner" or engaging in conduct that is "reasonably likely to harass, annoy, alarm, abuse, torment, or embarrass the person." Id. at § 85.022 (b)(2)(A) and (b)(5). "To facilitate settlement," parties may also agree in writing to the terms of a protective order as provided by Section 85.022, subject to the approval of the court. Id. at § 85.005(b). "The agreed order is enforceable civilly or criminally." Id. A person commits an offense by violating an order issued under Chapter 85of the Family Code, by knowingly or intentionally communicating with a protected individual in a "threatening or harassing manner." TEX.PENAL CODE ANN. § 25.07(a)(2)(A).
Appellant argues that the protective order issued here was void because it was issued without any specific finding of past family violence or the likelihood of future family violence as contemplated by Section 81.001. We disagree, at least with respect to whether the order is void. The order here was agreed upon and is authorized under Section 85.001. Id. at § 85.005(b)("To facilitate settlement, a respondent may agree in writing to the terms of a protective order as provided by Section 85.022, subject to the approval of the court."). Respondent focuses on the clause "as provided by Section 85.022" and takes this to mean that all the requirements in Section 85.022 must apply, including the predicate that its remedies may be invoked against a "person found to have committed family violence." We note, however, that the phrase "as provided by Section 85.022" modifies the phrase "terms of a protective order" and the "terms" could be understood as nothing more than the specific prohibitions that are available under Section 85.022, such as not communicating with the applicant in a harassing or threatening manner. In other words, a person might agree to the remedies available under Section 85.022 without admitting to the predicates necessary for a judge to involuntarily impose those same remedies.
Ultimately, we need not resolve this question of statutory construction because Appellant's argument falters on a more fundamental ground. Appellant's first three issues turn on whether the earlier order is void, as distinct from being merely voidable. This constitutes a collateral attack on the prior protective order. Kortebein v. American Mutual Life Ins. Co., 49 S.W.3d 79, 88 (Tex.App.--Austin 2001, pet. denied), cert. denied, 534 U.S. 1128, 122 S.Ct. 1065, 151 L.Ed.2d 968 (2002)("A collateral attack is an attempt to avoid the effect of a judgmentin a proceeding brought for some other purpose."). But only a void judgment may be collaterally attacked. Browning v. Prostok, 165 S.W.3d 336, 346 (Tex. 2005). When the order is merely voidable, it must be attacked directly. PNS Stores, Inc. v. Rivera, 379 S.W.3d 267, 271 (Tex. 2012). A judgment is void only when it is apparent that the court rendering judgment had no jurisdiction over the parties or property, no jurisdiction over the subject matter, no jurisdiction to enter the particular judgment, or no capacity to act. Browning v. Placke, 698 S.W.2d 362, 363 (Tex. 1985).1
We conclude that if the agreed protective order was improperly approved by the trial court because it lacked family violence findings, the error would make the order voidable, and not void. We faced an analogous situation in In re Ocegueda, 304 S.W.3d 576 (Tex.App.--El Paso ...
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