Joseph Bryan Dessens v. Victoria Argeroplos ( 2022 )

Affirmed as Modified and Majority and Concurring and Dissenting Opinions
filed December 15, 2022.
In The
Fourteenth Court of Appeals
NO. 14-20-00696-CV
JOSEPH BRYAN DESSENS, Appellant
V.
VICTORIA ARGEROPLOS, Appellee
On Appeal from the 280th District Court
Harris County, Texas
Trial Court Cause No. 2020-19658
MAJORITY OPINION
Appellant Joseph Bryan Dessens (“Joseph”) appeals the trial court’s
rendition of a lifetime protective order for stalking pursuant to former Code of
Criminal Procedure 7A. In three issues, Joseph argues the evidence is insufficient
to support (1) the finding that he engaged in behavior constituting stalking;
(2) certain conditions and restrictions imposed in the protective order; and (3) the
award of attorney’s fees to appellee Victoria Argeroplos (“Victoria”). For the
reasons below, we modify the protective order and affirm as modified.
BACKGROUND
Joseph and Victoria were married in 2013 and received a final decree of
divorce in April 2018. After the divorce, they had no substantive contact for over a
year.
In June 2019, Joseph sent a text message to Victoria attaching an article with
a note suggesting that Victoria ended their relationship instead of helping Joseph
deal with his alcoholism. Joseph also accused Victoria of sleeping with her “coke
dealer.” Victoria responded only with: “I’m not going to dignify that with a
response.”
There was no contact between the two until March 21, 2020, when Joseph
sent the following email to Victoria and several of her friends and family members:
You started an LLC with your coke dealer. Epic. Was it rape? since
he got you high on coke before y’all fucked while we were married? I
have no clue how to classify you fucking him after he fed you drugs.
You owe me $100k for tuition. $60k for the car. $30k for the ring.
But instead you’re fucking a Chinese commie coke dealer. How does
it feel being a traitor?
The next day Joseph texted Victoria about contacting her employer:
Starting to spam your work about you having an llc with your coke
dealer. You shouldn’t be so reckless while representing a company.
Call me a liar? I will send them the hair I collected. It’s been tested
and its viable.
On March 23, 2020, Joseph emailed Victoria’s employer with the following
message: “My ex-wife Victoria [] works for you. She started a business with her
coke dealer. Drug test her.” Victoria’s employer informed her about the email and
Victoria filed for a protective order shortly thereafter.
In July 2020, the trial court held a hearing on Victoria’s application for a
protective order. The trial court granted the application and rendered a final
2
protective order on August 14, 2020. Joseph requested findings of fact and
conclusions of law, which the trial court signed on October 13, 2020. The findings
of fact only mention the March 22, 2020 email as evidence supporting the
protective order.
ANALYSIS
Joseph raises three issues on appeal: (1) the evidence was legally and
factually insufficient to prove that Joseph engaged in the offense of stalking;
(2) the evidence was legally and factually insufficient to support certain conditions
ordered by the trial court in the protective order; and (3) the evidence was legally
and factually insufficient to support the trial court’s award of attorney’s fees to
Victoria. On appellate review, a trial court’s findings of fact have the same force
and effect as a jury’s verdict. Anderson v. City of Seven Points, 806 S.W.2d 791,
794 (Tex. 1991).
I. Statutory Background
The trial court issued the protective order against Joseph in accordance with
Code of Criminal Procedure chapter 7A.1 The Code of Criminal Procedure grants
a trial court authority to issue a protective order “without regard to the relationship
between the applicant and the alleged offender” if the applicant is a victim of
certain crimes, including stalking. See Act of May 10, 2011, 82nd Leg., R.S., ch.
135, § 2, 2011 Tex. Gen. Laws 640, 640 (repealed 2019). A trial court “shall issue
a protective order” if it finds that “there are reasonable grounds to believe that the
applicant is the victim of . . . stalking.” See Act of May 10, 2011, 82nd Leg., R.S.,
ch. 135, § 4, 2011 Tex. Gen. Laws 640, 641 (repealed 2019). “Stalking” is a
1
Since the rendition of the final protective order, the Texas legislature enacted
non-substantive changes to the Code of Criminal Procedure and placed the provisions relating to
protective orders for stalking in Code of Criminal Procedure article 7B. See Act of May 21,
2019, 86th Leg., ch. 469, § 1.02, 2019 Tex. Gen. Laws, 1065, 1066.
3
criminal offense under the Penal Code. See Tex. Penal Code Ann. § 42.072.
A person commits the offense of stalking if that 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, as relevant
here:
(1) constitutes the offense of harassment;
(2) causes the other person . . . to feel harassed, annoyed, alarmed,
abused, tormented, embarrassed, or offended; and
(3) would cause a reasonable person to . . . feel harassed, annoyed,
alarmed, abused, tormented, embarrassed, or offended.
Id.A person commits the offense of harassment “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;
* * *
(7) sends repeated electronic communications in a manner reasonably
likely to harass, annoy, alarm, abuse, torment, embarrass, or offend
another[.]
Id. § 42.07. The term “obscene” is defined in the harassment statute as a
communication “containing a patently offensive description of or a solicitation to
commit an ultimate sex act, including sexual intercourse . . . .” Id. § 42.07(b)(3).
The term “electronic communication” is defined in the statute as including, among
other things, communications sent via electronic mail and text messages. Id.
§ 42.07(b)(1)(A).
Before the trial court can enter an order, it must hold a hearing to determine
4
“whether there are reasonable grounds to believe that the applicant is the victim of
. . . stalking.” See Act of May 10, 2011, 82nd Leg., R.S., ch. 135, § 4, 2011 Tex.
Gen. Laws 640, 641 (repealed 2019).
II. Evidence Joseph Engaged in Stalking or Harassment
In his first issue, Joseph asserts the evidence was legally and factually
insufficient to prove that he engaged in conduct constituting stalking. See Tex.
Penal Code Ann. § 42.072.
A. Omitted Findings of Fact and Conclusions of Law
Asserting that the trial court’s findings of fact and conclusions of law
describe only a single instance of harassment or stalking, Joseph argues that the
final protective order is not supported by legally or factually sufficient evidence as
it does not establish a “course of conduct” as required by the Penal Code.
Rule of Civil Procedure 299 states the following concerning the import and
review of findings of fact:
When findings of fact are filed by the trial court they shall form the
basis of the judgment upon all grounds of recovery and of defense
embraced therein. The judgment may not be supported upon appeal
by a presumed finding upon any ground of recovery or defense, no
element of which has been included in the findings of fact; but when
one or more elements thereof have been found by the trial court,
omitted unrequested elements, when supported by evidence, will be
supplied by presumption in support of the judgment. Refusal of the
court to make a finding requested shall be reviewable on appeal.
Tex. R. Civ. P. 299. The rule plainly states that findings of fact “shall form the
basis of the judgment.” Id. This does not mean that the trial court must make a
finding as to every element of a cause of action. See id. So long as the trial court
makes a finding as to at least one element of a cause of action, this court may
presume the trial court made implied findings as to the remaining elements. See id;
5
see also Clinton v. Gallup, 621 S.W.3d 848, 850 (Tex. App.—Houston [14th Dist.]
2021, no pet.).
Though Joseph complains on appeal that the trial court failed to make all the
required findings, he did not make the trial court aware of this omission by
requesting additional findings. Vickery v. Comm’n for Lawyer Discipline, 5
S.W.3d 241, 255-56 (Tex. App.—Houston [14th Dist.] 1999, pet. denied) (“[A]
request for additional findings is in the nature of an objection[.]”). “In a bench
trial, the appellant may request additional findings on omitted elements to prevent
them from being deemed on appeal.” Id. at 254; see also Tex. R. Civ. P. 298 (“any
party may file with the clerk of the court a request for specified additional or
amended findings or conclusions”). Joseph never requested any additional or
amended findings of fact. Therefore, we presume the trial court’s omission is
inadvertent and we are authorized by Rule 299 to presume the trial court impliedly
made any findings, supported by the record, that are necessary to support its
judgment.2 Vickery, 5 S.W.3d at 258; see also Tex. R. Civ. P. 299. The trial court
made the following finding:
After almost two years post the divorce of the parties, where there was
nominal interaction. A trivial meeting after the divorce took place to
discuss the exchange of minor personal property after divorce,
[Joseph] engaged in the following behavior:
a. After not sleeping for 48-hour period, where Joseph [] testified, he
was suffering from emotional problems. On March 22, 2020 at 4:48
2
As discussed at length in Vickery, appellate courts presume the trial court impliedly
made findings, supported by the record, because public policy supports the validity of judgments.
Vickery, 5 S.W.3d at 251 (“[T]he presumption of validity extends to judgments derived with or
without the benefit of a jury. In fact, the presumption of validity is perhaps even stronger in a
bench trial where an experienced judge exercises the functions of a jury and is charged with the
responsibility of assessing the credibility of the witnesses, logically evaluating the evidence,
rationally resolving factual disputes on the basis of such evidence, and correctly applying the law
to the facts”). Only when it is clear that the omission was intentional, not inadvertent, does the
presumption not apply. Id. at 252-53.
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a.m., Joseph [] forwarded the following text message to 7 individual
persons who are being [Victoria’s] mother, and the others were church
members; Godsister, childhood friend who attended elementary
school with [Victoria], the church member, wife and children
interacted with [Victoria] on many[.]
The findings of fact describe only one email sent by Joseph to Victoria and her
close friends and family. Because at least one element of the offense was found by
the trial court, we may supply the omitted elements supported by the evidence. See
Tex. R. Civ. P. 299. We turn now to the evidence.
B. Standard of Review
When both legal and factual sufficiency challenges are raised on appeal, we
must first examine the legal sufficiency of the evidence. City of Houston v. Cotton,
171 S.W.3d 541, 546 (Tex. App.—Houston [14th Dist.] 2005, pet. denied). In
conducting a legal sufficiency review, we must consider the evidence in the light
most favorable to the appealed order and indulge every reasonable inference that
supports it. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). The
evidence is legally sufficient if it would enable reasonable and fair-minded people
to reach the decision under review. Id. at 827. This court must credit favorable
evidence if a reasonable trier of fact could, and disregard contrary evidence unless
a reasonable trier of fact could not. Id. The trier of fact is the sole judge of the
witnesses’ credibility and the weight to be given their testimony. Id. at 819.
This court may sustain a legal sufficiency challenge only if the record
reveals one of the following: (1) the complete absence of a vital fact; (2) the court
is barred by rules of law or of 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 scintilla; or (4) the evidence established conclusively the opposite of
the vital fact. Id. at 810. When the evidence offered to prove a vital fact is so
7
weak as to do no more than create a mere surmise or suspicion of its existence, the
evidence is less than a scintilla and, in legal effect, is no evidence. See Ford Motor
Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004).
In reviewing factual sufficiency, we must examine the entire record,
considering both the evidence in favor of and contrary to the challenged findings.
See Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex. 1998); Cain v.
Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam). We may set aside the verdict
for factual sufficiency only if it is so contrary to the overwhelming weight of the
evidence as to be clearly wrong and unjust. See Mar. Overseas Corp., 971 S.W.2d
at 407.
C. Sufficiency of the Evidence
Joseph and Victoria were the only witnesses to testify at the hearing.
Victoria testified that nearly two years after her divorce from Joseph, she received
the following email from Joseph:
You started an LLC with your coke dealer. Epic. Was it rape? since
he got you high on coke before y’all fucked while we were married? I
have no clue how to classify you fucking him after he fed you drugs.
You owe me $100k for tuition. $60k for the car. $30k for the ring.
But instead you’re fucking a Chinese commie coke dealer. How does
it feel being a traitor?
The email copied several of Victoria’s friends and family members as recipients.
When asked if this email “alarm[ed]” her, Victoria replied “[v]ery much so.”
According to Victoria, the following day Joseph sent her a text message
stating that he was going to contact her employer and tell them that Victoria
“started an LLC with a coke dealer.” He also threatened to submit a viable hair
sample of hers for testing. Joseph did, in fact, send an email to Victoria’s
employer stating they should drug test her. Victoria testified that this email to her
8
employer made her “concerned about losing [her] job.”
These three communications taken together illustrate a course of conduct, on
more than one occasion, that was directed specifically at Victoria by Joseph that
caused Victoria to feel harassed, annoyed, and alarmed and would cause a
reasonable person to feel harassed, annoyed, and alarmed. See Tex. Penal Code
Ann. § 42.072. These emails and text communications also constitute the offense
of harassment as the evidence at the hearing reflected that Joseph sent repeated
electronic communications in a manner reasonably likely to harass, annoy, alarm,
abuse, torment, embarrass, or offend Victoria. See id. § 42.07. Viewing the
evidence in the light most favorable to the trial court’s order, we hold Victoria’s
testimony, along with the electronic communications in evidence, provided more
than a scintilla of evidence to support the trial court’s findings and imposition of a
protective order.
We turn next to Joseph’s factual sufficiency challenge. While Joseph
testified during the hearing, he did not offer any testimony controverting Victoria’s
version of the events or the electronic communications. He admitted that he sent
the communications, though he disputed that his motivation was to harass, annoy,
or alarm Victoria. He testified that he thought contacting her employer might help
her to get into a rehabilitation program. He stated that when he sent the
communications he had not slept in several days and was feeling stressed and
isolated due to the COVID-19 pandemic and illness in his family.
As the sole judge of the credibility of the witnesses, the trial court was free
to accept or reject Victoria’s uncontroverted testimony, as well as Joseph’s
testimony. See City of Keller, 168 S.W.3d at 819; In re Marriage of Moncur, 640
S.W.3d 309, 317 (Tex. App.—Houston [14th Dist.] 2022, no pet.). The evidence
is not too weak to support the trial court’s findings that Joseph engaged in conduct
9
constituting harassment and stalking, nor are the findings so against the
overwhelming weight of the evidence as to be clearly wrong or manifestly unjust.
We conclude the evidence is factually sufficient to support the findings in the
protective order.
Joseph also complains the trial court did not identify the specific
subsection(s) of the harassment statute it found he had violated in either its oral
rendition or in its findings of fact and conclusions of law. However, Joseph’s
argument is premised on the assumption that the trial court’s findings of fact must
identify each subsection of the statute violated, and he offers no legal authority for
this argument. The trial court was required to find whether there were reasonable
grounds to believe that the applicant was the victim of stalking and, if the court
made such a finding, it was required to issue a protective order. See Act of May
10, 2011, 82nd Leg., R.S., ch. 135, § 4, 2011 Tex. Gen. Laws 640, 641 (repealed
2019). The final protective order already included a finding that Joseph engaged in
“conduct directed specifically to [Victoria] that constitutes harassment and stalking
as defined under Texas Penal Code § 42.07 & 42.072.” Therefore, it contained the
findings required by statute. The trial court was not required to make a finding on
every sub-part of the statute violated. See Nicholas v. Envtl. Sys. (Int’l) Ltd., 499
S.W.3d 888, 894-95 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) (“The
trial court is not required to set out in detail every reason or theory by which it
arrived at its final conclusions. Nor is the trial court required to accept amended
findings and conclusions that merely resolve evidentiary issues or are otherwise
unnecessary.”).
We overrule Joseph’s first issue.
III. Conditions of the Protective Order
In his second issue, Joseph challenges the following conditions of the
10
protective order: (1) the lifetime duration of the protective order; (2) the lifetime
prohibition on possession of firearms; (3) the requirement that Joseph attend a
battering intervention and protection program (“BIPP”); (4) the requirement that
Joseph submit to a psychological evaluation; and (5) the requirement that Joseph
submit to an alcohol evaluation. In response, Victoria argues that the trial court
had discretion to impose all challenged conditions, as well as the attorney’s fees,
and that the trial court’s decision should be affirmed.
A. Standard of Review
We review the conditions included in a protective order for an abuse of
discretion. In re Doe, 19 S.W.3d 249, 253 (Tex. 2000) (“The abuse of discretion
standard applies when a trial court has discretion either to grant or deny relief
based on its factual determinations.”); see Act of May 17, 2013, 83rd Leg., R.S.,
ch. 760, § 2, 2013 Tex. Gen. Laws 1928, 1928-29 (repealed 2019) (“[i]n a
protective order issued under this subchapter, the court may . . . order the alleged
offender to take action as specified by the court that the court determines is
necessary or appropriate to prevent or reduce the likelihood of future harm”)
(emphasis added); see generally Rodriguez v. Doe, 614 S.W.3d 380, 385-86 (Tex.
App.—Houston [14th Dist.] 2020, no pet.) (noting that Family Code section
85.022(b), which also governs protective orders, gives the trial court discretion to
prohibit certain conduct).
A trial court abuses its discretion if it acts arbitrarily or unreasonably or
without reference to guiding rules or principles. Berkel & Co. Contractors, Inc. v.
Lee, 612 S.W.3d 280, 287 (Tex. 2020). Under an abuse of discretion standard, the
legal and factual sufficiency of the evidence are relevant factors in determining
whether the trial court abused its discretion, but they are not independent grounds
of error. See Zeifman v. Michels, 212 S.W.3d 582, 587 (Tex. App.—Austin 2006,
11
pet. denied); see also Cox v. Walden, No. 13-20-00283-CV, 2022 WL 120014, at
*5-6 (Tex. App.—Corpus Christi Jan. 13, 2022, no pet.) (mem. op.). A trial court
does not abuse its discretion when some evidence reasonably supports its decision.
Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002).
B. Duration of the Protective Order
Joseph argues the evidence was factually insufficient to support the lifetime
duration of the protective order. He acknowledges that while the statute allowed
the trial court to issue the protective order for his lifetime, it was manifestly unjust
to do so under the facts of the case.
The Code of Criminal Procedure allows a trial court, when the court has
found reasonable grounds to believe the applicant is the victim of stalking, to issue
a protective order “for the duration of the lives of the offender and victim . . . or for
any shorter period stated in the order.” See Act of May 19, 2011, 82nd Leg., R.S.,
ch. 238, § 2, 2011 Tex. Gen. Laws 280, 281 (repealed 2019). The trial court thus
had statutory authority to make the protective order issued in this case effective for
Joseph’s lifetime, or for any shorter period of time in its discretion. See Straughan
v. Girsch, No. 14-20-00763-CV, 2022 WL 2977049, at *3 (Tex. App.—Houston
[14th Dist.] July 28, 2022, no pet.) (mem. op.).
Victoria requested the protective order be granted for the duration of
Joseph’s lifetime because she was being harassed and stalked two years after her
divorce. She explained to the court that she did not believe that a short time period
would be enough. The trial court agreed and set the duration of the protective
order for Joseph’s lifetime. In contrast to a protective order issued pursuant to the
Family Code which requires certain findings be made to support a protective order
exceeding two years in duration, there were no factors or findings required
constraining the trial court’s discretion. Compare Act of May 19, 2011, 82nd Leg.,
12
R.S., ch. 238, § 2, 2011 Tex. Gen. Laws 280, 281 (repealed 2019) with Tex. Fam.
Code Ann. § 85.025(a), (a-1). Therefore, we conclude this decision was within the
trial court’s authority and the trial court had sufficient evidence on which to
exercise its discretion.
C. Possession of a Firearm
Under the applicable statute, the trial court was permitted to prohibit the
respondent from “possessing a firearm”. See Act of May 17, 2013, 83rd Leg.,
R.S., ch. 760, § 2, 2013 Tex. Gen. Laws 1928, 1928-29 (repealed 2019). Pursuant
to that provision, the trial court prohibited Joseph from “possessing a firearm or
ammunition” for the duration of his life. Challenging that condition on appeal,
Joseph points out that the evidence at trial did not show a history of physical harm,
bodily injury, or threats of violence between himself and Victoria.3
We agree with Joseph. The record shows that Joseph never physically
harmed or threatened to physically harm Victoria during their relationship or after
their divorce. The record also shows that Joseph never physically harmed or
threatened to harm Victoria’s family. Moreover, the record does not contain any
evidence showing that Joseph has harmed or threatened to harm any person with a
firearm. Rather, as the evidence discussed above shows, the actions at issue were
limited to electronic communications. This evidence alone does not warrant
prohibiting Joseph from possessing a firearm or ammunition for the duration of his
life.
3
In his appellate brief, Joseph mentions in passing and without briefing that the lifetime
prohibition on possessing a firearm infringes on his rights under the Second Amendment to the
United States Constitution. See U.S. Const. amend. II. However, because Joseph did not raise
this complaint in the trial court, he did not preserve the issue for appellate review. See Tex. R.
App. P. 33.1(a); see also In re L.M.I., 119 S.W.3d 707, 710-11 (Tex. 2003) (holding that, to
preserve a complaint for appellate review, including a constitutional complaint, the party must
present the complaint to the trial court and obtain a ruling thereon).
13
Therefore, the trial court abused its discretion when it ordered that Joseph
was prohibited from possessing a firearm or ammunition. See In re Doe, 19
S.W.3d at 253. We sustain Joseph’s second issue in part as to this condition of the
protective order.
D. Psychological Evaluation and Alcohol Assessment
Joseph also argues in his second issue that the evidence was factually and
legally insufficient to support the conditions in the protective order requiring him
to participate in (1) a psychological evaluation, and (2) an alcohol assessment. He
acknowledges it was legally permissible for the trial court to order him to submit to
a psychological evaluation, but argues the evidence presented at trial was so weak
as to make it manifestly unjust. We disagree.
The requirement that an alleged offender submit to a psychological
evaluation or alcohol assessment is not specifically enumerated in article 7A. See
Act of May 17, 2013, 83rd Leg., R.S., ch. 760, § 2, 2013 Tex. Gen. Laws 1928,
1928-29 (repealed 2019). However, the trial court had the power to require Joseph
to participate in such evaluations so long as the trial court determined it was
necessary or appropriate to prevent or reduce future harm. See id. The trial court’s
discretion to enact conditions in the protective order is limited only by the
requirement that such conditions must be “necessary or appropriate to prevent or
reduce the likelihood of future harm.” Id. Therefore, the trial court’s
determination or exercise of discretion should be supported by evidence indicating
the appropriateness or necessity of the condition. See id.The evidence at the hearing revealed that Joseph was struggling with
isolation during the COVID-19 pandemic, his father’s declining cognitive health,
and his sister’s cancer diagnosis. Victoria testified that Joseph had problems with
alcohol during their marriage, even though Joseph denied he was drinking at the
14
time he sent the electronic messages. Though Joseph claims there was no evidence
at the hearing that he had any mental health diagnoses, the lack of an official
diagnosis does not negate Joseph’s own testimony that when he sent the electronic
communications to Victoria it was a stressful time and he was “going through a
lot.” Joseph’s conduct — which the trial court found to constitute stalking — also
raises the issue of Joseph’s psychological state. Therefore, the trial court received
sufficient evidence at the hearing to exercise its discretion in requiring Joseph to
submit to a psychological evaluation, and such a condition was not contrary to the
overwhelming weight of the evidence or clearly wrong.
Similarly, Joseph argues there was no evidence presented at the hearing that
he had consumed alcohol since the end of his marriage to Victoria. He also argues
there was no evidence received at the hearing that alcohol was a contributing factor
in sending the email communication to Victoria. Therefore, he argues there was no
evidence supporting the trial court’s finding that his participation in an alcohol
assessment was necessary to prevent stalking. However, given the evidence before
the court reflecting that Joseph had struggled with alcohol or alcoholism in the
recent past, as well as Victoria’s testimony that his abusive communications
post-divorce escalated from her experience during their marriage, we conclude the
trial court received sufficient evidence at the hearing to exercise its discretion in
requiring Joseph to submit to an alcohol assessment as necessary to prevent future
harm.
We overrule Joseph’s challenge to the conditions in the protective order that
he submit to a psychological evaluation and alcohol assessment.
E. Battering Intervention and Prevention Program (“BIPP”)
Joseph further argues the evidence was legally and factually insufficient to
support the condition in the protective order requiring him to participate in a BIPP
15
because there was no evidence at trial reflecting a history of physical harm, bodily
injury, or threats of violence between Joseph and Victoria. Joseph argues the 18-
week program was ordered by the trial court without any basis in the evidence.
We agree. BIPP is a program created by Texas statute to provide
“educational services and intervention designed to help the batterers stop their
abusive behavior.” See Tex. Code Crim. Proc. Ann. art. 42.141 §1(7)(B).
“Batterer” is defined as “a person who commits repeated acts of violence or who
repeatedly threatens violence against another”. Id. §1(1).
But here, the record is devoid of any evidence showing that Joseph has
engaged in acts of physical violence or has threatened physical violence against
another. Without any evidence showing a nexus between the actions at issue and
BIPP’s aims, we conclude that the imposition of this condition constitutes an abuse
of direction. See In re Doe, 19 S.W.3d at 253.
We sustain Joseph’s second issue in part and remove the condition of the
protective order requiring him to participate in a BIPP.
F. Attorney’s Fees
Finally, Joseph challenges the trial court’s award of attorney’s fees and
raises two arguments: (1) the Code of Criminal Procedure does not provide for the
award of attorney’s fees in an application for protective order under article 7A; and
(2) the evidence was not legally and factually sufficient to support the award.
Victoria argues that Joseph’s challenge to the award of the attorney’s fees
should be reviewed under the abuse-of-discretion standard instead of under the
sufficiency-of-the-evidence standard. Relying on Bocquet v. Herring, Victoria
argues that an award of attorney’s fees is reviewed under the abuse-of-discretion
standard. 972 S.W.2d 19, 20 (Tex. 1998). However, Bocquet discusses the
16
limitations on the discretion of a trial court to award attorney’s fees and one of
those requirements is that attorney’s fees must be reasonable and necessary. Id. at
21. There also must be sufficient evidence to support the award of attorney’s fees
as reasonable and necessary. Id. This inquiry also requires a review of both the
discretion of the court and the evidence supporting the award. Id.
Code of Criminal Procedure Chapter 7A did not contain any provision
allowing for the recovery of attorney’s fees. However, Chapter 7A provided that
Family Code Title 4 applies to stalking protective orders unless the provisions of
the two statutes conflict. See Act of May 20, 2003, 78th Leg., R.S., ch. 836, § 1,
art. 7A.04, 2003 Tex. Gen. Laws 2622, 2623 (repealed 2019). Family Code
chapter 81 provides the trial court with discretion to award attorney’s fees against
the party found to have committed family violence. Tex. Fam. Code Ann.
§ 81.005. Because he argues the trial court did not make a finding that he had
committed family violence, Joseph asserts that Chapter 81 does not apply.
However, Joseph did not object in the trial court to the trial court’s discretion to
award attorney’s fees and raises only a sufficiency challenge on appeal. Therefore,
we conclude that Joseph has waived this argument and we need not address it. See
Tex. R. App. P. 33.1.
We turn now to the sufficiency of the evidence supporting the award of
attorney’s fees, which may be raised for the first time on appeal. See Tex. R. Civ.
P. 324(a), (b). At the hearing, Victoria’s lawyer, Rick Ramos, testified that while
he charges an hourly rate for his services, he only charged Victoria a flat fee of
$2,500. He stated the amount of work he performed exceeded $2,500 in value, but
he was only seeking a reasonable and necessary amount for filing the protective
order. Ramos offered no estimate of the number of hours devoted to the case or
the tasks in which he engaged. He also did not introduce any bills or fee
17
statements into evidence.
An award of attorney’s fees must be supported by evidence that the fees are
reasonable and necessary. See Rohrmoos Venture v. UTSW DVA Healthcare, LLP,
578 S.W.3d 469, 484 (Tex. 2019) (“When fee-shifting is authorized, whether by
statute or contract, the party seeking a fee award must prove the reasonableness
and necessity of the requested attorney’s fees.”). Rohrmoos established that the
lodestar analysis is to be applied in any situation in which an objective calculation
of reasonable work times a reasonable rate can be employed. Id. at 497-98.
Generally, while contemporaneous billing records are not required, legally
sufficient evidence to establish a reasonable and necessary fee needs to include a
description of the particular services performed, the identity of each attorney who
and approximately when that attorney performed the services, the reasonable
amount of time required to perform the services, and the reasonable hourly rate for
each attorney performing the services. See id. at 497-98, 501-02, 502-03. This
base lodestar figure constitutes a presumptively reasonable and necessary fee for
prosecuting or defending the prevailing party’s claim through the litigation
process. Id. at 498-502 (base lodestar accounts for most relevant considerations set
forth in Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex.
1997), and can be enhanced or reduced accordingly).
Without details about the work done, how much time was spent on the tasks,
and how he justified the flat fee charged in Victoria’s case, we conclude that
Victoria’s attorney’s testimony “lacks the substance required to uphold a fee
award” and thus is legally insufficient. See id. at 504-05. Therefore, we sustain
Joseph’s second issue in part as to the award of attorney’s fees. Because attorney’s
fees for family-violence protective orders are not mandatory, we cannot remand for
a redetermination of those fees and modify the protective order accordingly. See
18
In re K.A.M.S., 583 S.W.3d 335, 350 n.10 (Tex. App.—Houston [14th Dist.] 2019,
no pet.) (collecting cases addressing attorney’s fees in suit affecting the parent-
child relationship).
We sustain Joseph’s second issue in part as to the award of attorney’s fees.
CONCLUSION
Having sustained Joseph’s second issue in part, we modify the final
protective order to delete the following condition ordering that Joseph is:
9. Prohibited from possessing a firearm or ammunition, unless
Respondent is a peace officer, as defined by section 1.07 of the Texas
Penal Code, actively engaged in employment as a sworn, full-time
paid employee of a state agency or political subdivision.
We also delete the following paragraph ordering that Joseph attend a BIPP:
IT IS ORDERED that Respondent register to attend a battering
intervention and prevention program accredited under article 42.141
of the Texas Code of Criminal Procedure with AVDA (Aid to Victims
of Domestic Violence). Respondent is ORDERED to file proof of
registration with the Court on or before August 17, 2020 at 5:00 PM.
Finally, we delete the portion of the final protective order “awarding two thousand
and five hundred dollars ($2,500) as reasonable attorney’s fees for the services of
Ricardo L. Ramos” and modify the protective order to remove the entire paragraph
addressing the award of attorney’s fees.4 We affirm the final protective order as
4
The paragraph to be struck is as follows:
Attorney’s Fees
The Court finds that Joseph [] should be assessed two thousand and five
hundred dollars ($2,500) as reasonable attorney’s fees for the services of Ricardo
L. Ramos. IT IS ORDERED that Ricardo L. Ramos, 2001 Kirby Drive, Suite
340, Houston, Texas 27019, Harris County, Texas is awarded judgment of two
thousand and five hundred dollars ($2,500) for legal services rendered. The
judgment, for which let execution issue, is awarded against Joseph []. The
amount collected under this judgment shall be paid to Ricardo L. Ramos on or
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modified. See Tex. R. App. P. 43.2(b).
/s/ Meagan Hassan
Justice
Panel consists of Justices Wise, Spain, and Hassan (Spain, J., concurring and
dissenting).
before the sixtieth day after the date this order is signed by cash, LawPay, credit
card payment, cashier’s check, or money order.
20