Opinion
NO. 01-19-00533-CV
05-25-2021
BRENT ADAM KLOECKER, Appellant v. IRINA LINGARD, Appellee
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), 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
Because Lingard's son is a minor, we refer to him in this opinion by a pseudonym to protect his privacy.
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, he stated 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. 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.
One message from Kloecker stated, "What a shame, it looks like someone broke the windows on your house." This message was undated, but from the context of the surrounding messages, it appears to have been sent in late June 2018, before Lingard returned from her trip to Armenia.
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 Kloecker had 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 a CPS 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 a
temporary 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 from going to their place of residence or employment for the duration of the order, set at twenty-five years. The order also prohibited Kloecker from possessing a firearm for the duration of the order, and the order suspended any firearm-related license that he might hold.
Kloecker filed a motion to modify or, in the alternative, a motion for new trial. Kloecker requested that the trial court reduce the duration of the protective order to five years. In the alternative, Kloecker requested that the trial court grant a new trial so it could review the actual CPS report and records. Kloecker stated that he believed a review of these records would demonstrate that he made the CPS report in good faith, and that he was required to make the report under provisions in the Family Code concerning the reporting of suspected child abuse. This motion was overruled by operation of law. This appeal followed.
Duration of Protective Order
In his first issue, Kloecker argues that the trial court erred by adding twenty years to the duration of the protective order based solely on the fact that he allegedly made a CPS report against Lingard. Kloecker points out that, under the Family Code, a person can be required to report suspected child abuse or neglect in certain circumstances. He argues that there was no evidence before the trial court concerning whether this CPS report was required to be made, nor was there evidence that Kloecker was the person who made the report. A. Governing Law
Protective orders are governed by provisions in both the Family Code and the Code of Criminal Procedure. R.M. v. Swearingen, 510 S.W.3d 630, 633 (Tex. App.—El Paso 2016, no pet.); Shoemaker v. State for Protection of C.L., 493 S.W.3d 710, 715 (Tex. App.—Houston [1st Dist.] 2016, no pet.). Family Code section 82.002 allows a person to file an application for a protective order to protect against family violence, which includes dating violence. See TEX. FAM. CODE ANN. § 82.002 (setting out who may file application for protective order and under which circumstances); id. § 71.004 (defining "family violence," which includes "dating violence"); id. § 71.0021(a) (defining "dating violence"). Code of Criminal Procedure article 7A.01 allows a person who is a victim of stalking, among other specified criminal offenses, to file an application for a protective order. See Act of May 16, 2011, 82nd Leg., R.S., ch. 135, § 2, art. 7A.01, 2011 Tex. Gen. Laws 640, 640 (repealed 2019); R.M., 510 S.W.3d at 633.
Code of Criminal Procedure Chapter 7A was repealed by the Texas Legislature in the 2019 legislative session, and these provisions were recodified without substantive amendment in Chapter 7B. Chapter 7B took effect on January 1, 2021. The provisions of former Chapter 7A were in effect at the time the trial court issued the protective order against Kloecker.
A person commits the offense of stalking if he, 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:
(1) constitutes an offense under [Penal Code] Section 42.07, or that the actor knows or reasonably should know the other person will regard as threatening:
(A) bodily injury or death for the other person;
(B) bodily injury or death for a member of the other person's family or household or for an individual with whom the other person has a dating relationship; or
(C) that an offense will be committed against the other person's property;
(2) causes the other person, a member of the other person's family or household, or an individual with whom the other person has a dating relationship to be placed in fear of bodily injury or death or in fear that an offense will be committed against the other
person's property, or to feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended; and
(3) would cause a reasonable person to:
TEX. PENAL CODE ANN. § 42.072(a); see id. § 42.07(a) (setting out elements of offense of harassment); Shoemaker, 493 S.W.3d at 716.(A) fear bodily injury or death for himself or herself;
(B) fear bodily injury or death for a member of the person's family or household or for an individual with whom the person has a dating relationship;
(C) fear that an offense will be committed against the person's property; or
(D) feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended.
After holding a hearing on the application for a protective order, the trial court shall find whether family violence has occurred and whether family violence is likely to occur in the future. TEX. FAM. CODE ANN. § 85.001(a). For protective orders sought under Chapter 7A, the trial court shall find whether there are reasonable grounds to believe that the applicant is a victim of stalking. Act of May 16, 2011, 82nd Leg., R.S., ch. 135, § 4, art. 7A.03, 2011 Tex. Gen. Laws 640, 641 (repealed 2019); Shoemaker, 493 S.W.3d at 717.
In a protective order, the trial court may prohibit a person found to have committed family violence from acts including communicating directly or indirectly with a person protected by the order; going to or near the residence, place of employment, or school of a person protected by the order; engaging in conduct that is reasonably likely to harass, annoy, alarm, abuse, torment, or embarrass the person protected by the order; and possessing a firearm. TEX. FAM. CODE ANN. § 85.022(b); see also TEX. CODE CRIM. PROC. ANN. art. 7B.005(a)(2) (allowing trial court to prohibit offender from engaging in most of actions described in Family Code section 85.022(b), including possessing firearm); Act of May 20, 2003, 78th Leg., R.S., ch. 836, § 1, art. 7A.05, 2003 Tex. Gen. Laws 2622, 2623 (repealed 2019) (prior version of article 7B.005)
For protective orders sought under the Family Code, the general rule is that the duration of the order may not exceed two years, although the court may issue a protective order for a longer period if the court finds that the respondent "committed an act constituting a felony offense involving family violence against the applicant or a member of the applicant's family or household . . . ." TEX. FAM. CODE ANN. § 85.025(a), (a-1). For protective orders issued under Code of Criminal Procedure article 7A.03, the order "may be effective for the duration of the lives of the offender and victim" or "for any shorter period stated in the order." Act of May 28, 2007, 80th Leg., R.S., ch. 882, § 3, art. 7A.07, 2007 Tex. Gen. Laws 1902, 1902 (repealed 2019); see also TEX. CODE CRIM. PROC. ANN. art. 7B.007(a) ("A protective order issued under Article 7B.003 may be effective for the duration of the lives of the offender and victim or for any shorter period stated in the order."); Beach v. Beach, No. 01-19-00123-CV, 2020 WL 1879553, at *3 (Tex. App.—Houston [1st Dist.] Apr. 16, 2020, no pet.) (mem. op.) (stating that, under article 7A.07, trial court has discretion to make protective order effective for duration of lifetimes of offender and victim). B. Analysis
Lingard alleged in her application for a protective order that Kloecker had engaged in conduct that constituted family violence under the Family Code. She also alleged that he had engaged in conduct that constituted stalking and harassment under the Penal Code, justifying a protective order under Chapter 7A.
The trial court first issued a temporary ex parte protective order on February 11, 2019, and set a hearing date on Lingard's application in March 2019. The trial court initially heard testimony from Lingard on March 28, 2019, concerning Kloecker's conduct, but the court recessed the hearing before either side had rested its case in chief. The hearing resumed on April 17, 2019. At the continuation of the hearing, the trial court heard testimony that one day after the first hearing, Kloecker contacted Lingard's ex-husband via email. This email was entitled, "Brent Vs. Irina in the Interest of [Alan] = CPS Report," and it stated a name and phone number for a CPS caseworker. Kloecker stated, "He called me and said he will be contacting you soon." Lingard's ex-husband forwarded this email to Lingard, and the trial court admitted a copy of the email into evidence.
To the extent Kloecker argues that the trial court erred by admitting this email into evidence on hearsay grounds because Lingard's ex-husband was available to testify but did not, we note that the declarant of the email statements is Kloecker, not Lingard's ex-husband. See TEX. R. EVID. 801(b) (defining "declarant" as "the person who made the statement"). The email does not constitute hearsay because Lingard offered the statements in the email as an admission of a party opponent. See TEX. R. EVID. 801(e)(2)(A) (providing that statement is not hearsay if it is offered against opposing party and was made by party in individual capacity).
Lingard testified that she had been contacted by a CPS caseworker and an investigation had been opened. Lingard had a meeting with the caseworker scheduled for the day after the hearing before the trial court. She had never been contacted or questioned by CPS before this occasion. Lingard also testified that Kloecker had never met Alan, and Kloecker had never had any interactions with Alan either alone or with Lingard present. She believed that Kloecker contacted CPS and filed a false report against her.
Kloecker argues that the trial court had no evidence before it from which it could determine whether a CPS report was required to be made. See TEX. FAM. CODE ANN. § 261.101(a) ("A person having cause to believe that a child's physical or mental health or welfare has been adversely affected by abuse or neglect by any person shall immediately make a report as provided by this subchapter."). He also argues that there is no evidence of bad faith in making the report. See id. § 261.106(a) ("A person acting in good faith who reports or assists in the investigation of a report of alleged child abuse or neglect . . . is immune from civil or criminal liability that might otherwise be incurred or imposed."). We disagree. Given the timing of the report relative to the protective order hearing, the contact with Lingard's ex-husband, and Lingard's unrebutted testimony that Kloecker had never met or interacted with Alan, the trial court reasonably could have inferred that the report was made in bad faith and to harass Lingard. See Shoemaker v. State for Protection of C.L., 493 S.W.3d 710, 714-15 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (stating that trial court is factfinder when determining whether to issue protective order and, as factfinder, court may draw inferences from facts).
At the close of the hearing, the trial court stated its findings that family violence had occurred and that Kloecker's conduct met the requirements of Penal Code sections 42.07 (harassment) and 42.072 (stalking). Consequently, a protective order under Chapter 7A was justified. The court stated that Kloecker's conduct warranted a protective order for a longer duration than the typical two-year period. The court noted several aspects of Kloecker's conduct that it had found "disturbing," including Kloecker's continued contacting of Lingard after Lingard requested that he stop; his actions involving Alan's guinea pig; the vandalism to Lingard's house; and the negative online reviews, referring to Lingard by name, on websites for her employers. 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 a temporary 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.
Although the trial court used the language "add on" when it stated its ruling at the close of the hearing, as the State points out, the trial court only issued one protective order in this case. The trial court did not issue a protective order for a duration of five years and then decide to amend the order to add an additional twenty years to the duration.
In the written protective order, the trial court found that Kloecker and Lingard had previously been involved in a dating relationship, that dating and family violence had occurred, that family violence was likely to occur again in the future, and that Kloecker had committed family violence. The trial court also found that there were reasonable grounds to believe that Kloecker had engaged in conduct that constituted harassment and stalking under Penal Code sections 42.07 and 42.072, and that harassment and stalking were likely to occur again in the future. The trial court issued its protective order pursuant to both Family Code Chapter 85 and Code of Criminal Procedure Chapter 7A.
The Code of Criminal Procedure allows a trial court, in a case such as this one in which 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 28, 2007, 80th Leg., R.S., ch. 882, § 3, art. 7A.07, 2007 Tex. Gen. Laws 1902, 1902 (repealed 2019); Beach, 2020 WL 1879553, at *3. The trial court thus had statutory authority to make the protective order issued in this case effective for the lifetimes of Kloecker and Lingard, or for any shorter period of time, as stated in the order. The trial court considered granting the order for the lifetimes of the parties, as well as for the five-year duration Lingard had requested, but it ultimately set the duration of the protective order at twenty-five years. This decision was within the trial court's authority. We conclude that the trial court did not abuse its discretion in setting the duration of the protective order at twenty-five years. See Act of May 28, 2007, 80th Leg., R.S., ch. 882, § 3, art. 7A.07, 2007 Tex. Gen. Laws 1902, 1902 (repealed 2019); Beach, 2020 WL 1879553, at *3.
We overrule Kloecker's first issue.
Motion for New Trial
In his second issue, Kloecker contends that the trial court erred by failing to grant his motion to modify the protective order or, in the alternative, grant a new trial. Kloecker argues that, for the same reasons he presented in connection with his first issue, the trial court abused its discretion by failing to modify the protective order to reduce its duration from twenty-five years to five years. He also argues that the trial court should have granted a new trial so it could examine the actual CPS report and any CPS records, which would have allowed the court to determine whether the report was required to be made and if it was made in bad faith.
We review a trial court's denial of a motion for new trial for an abuse of discretion. Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 926 (Tex. 2009) (per curiam); Nguyen v. Kuljis, 414 S.W.3d 236, 239 (Tex. App.—Houston [1st Dist.] 2013, pet. denied). A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner, or if it acts without reference to any guiding rules or principles. Nguyen, 414 S.W.3d at 239 (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)).
As stated above, because the trial court found that there were reasonable grounds to believe that Lingard was the victim of stalking, the trial court had authority to make the protective order effective for the lifetimes of Kloecker and Lingard, or for any shorter time period as stated in the order. See Act of May 28, 2007, 80th Leg., R.S., ch. 882, § 3, art. 7A.07, 2007 Tex. Gen. Laws 1902, 1902 (repealed 2019); Beach, 2020 WL 1879553, at *3. The trial court did not abuse its discretion when it set the duration of this protective order at twenty-five years. The court therefore did not abuse its discretion when it failed to grant Kloecker's motion to modify the protective order to reduce its duration to five years.
With respect to the new trial portion of Kloecker's post-judgment motion, we likewise conclude that the trial court did not abuse its discretion in failing to grant a new trial. First, the trial court's decision to grant the protective order and set the duration at twenty-five years was within its statutory authority. In a situation in which the trial court finds that there are reasonable grounds to believe the applicant was a victim of stalking, Chapter 7A provides that the protective order can be made effective for the lifetimes of the parties. Chapter 7A does not set any other limit for the duration of an order issued under that chapter. The duration of the protective order issued in this case was statutorily permissible. See Act of May 28, 2007, 80th Leg., R.S., ch. 882, § 3, art. 7A.07, 2007 Tex. Gen. Laws 1902, 1902 (repealed 2019).
Second, the trial court had evidence before it from which it could infer that the CPS report was false or made in bad faith. Shortly after Lingard filed the application for a protective order, the trial court granted a temporary ex parte protective order that, among other things, prevented Kloecker from communicating with or going near both Lingard and Alan. Kloecker emailed Lingard's ex-husband the day after the first hearing on the protective order and informed him of a CPS report involving Alan. In this email, Kloecker provided the name and phone number of a CPS caseworker and stated, "He called me and said he will be contacting you soon." Lingard testified that she had been contacted by a CPS caseworker and that she had an appointment with a caseworker scheduled for the day after the second hearing on the protective order. Lingard unequivocally stated that the CPS report made against her was false. She testified that Kloecker had never met Alan, and he had never interacted with Alan either alone or with Lingard. Kloecker did not testify at the second protective order hearing and presented no contrary evidence.
Kloecker did not file an affidavit with his motion for new trial. He has not, at any point, presented any evidence to the trial court concerning the making of the report to CPS or the contents of that report. Likewise, he has not presented any evidence concerning the allegations of abuse or neglect made against Lingard to CPS. He did not establish that the CPS report and records were "so material [that they] would probably produce a different result if a new trial were granted." See Waffle House, Inc. v. Williams, 313 S.W.3d 796, 813 (Tex. 2010) (stating one element of standard to obtain new trial on basis of newly-discovered evidence). We conclude that Kloecker has not established that the trial court abused its discretion by failing to grant his motion for new trial.
We overrule Kloecker's second issue.
Constitutionality of Code of Criminal Procedure Chapter 7A
Finally, in his third issue, Kloecker contends that the trial court erred by denying his as-applied challenge to the constitutionality of Code of Criminal Procedure Chapter 7A. He argues that Chapter 7A unconstitutionally restricts his fundamental right to possess a firearm without due process guarantees. A. Standard of Review
Kloecker also raised a facial challenge to Chapter 7A in the trial court. On appeal, however, Kloecker makes no attempt to demonstrate that Chapter 7A operates unconstitutionally in all situations—as required to sustain a facial challenge to the constitutionality of a statute. Furthermore, in his prayer for relief, he requests that this Court reverse the trial court's judgment "due to the unconstitutionality of Chapter 7A of the Code of Criminal Procedure as applied to this proceeding." We therefore consider only whether Chapter 7A is unconstitutional as applied to Kloecker.
When evaluating the constitutionality of a statute, we presume that statutes enacted by the Legislature comply with both the United States and Texas Constitutions. EBS Sols., Inc. v. Hegar, 601 S.W.3d 744, 754 (Tex. 2020). The party asserting that the statute is unconstitutional bears a "high burden" to show that it is unconstitutional. Id. (quoting Patel v. Tex. Dep't of Licensing & Regulation, 469 S.W.3d 69, 87 (Tex. 2015)).
There are two types of challenges to the constitutionality of a statute: facial challenges and as-applied challenges. Lund v. Giauque, 416 S.W.3d 122, 127 (Tex. App.—Fort Worth 2013, no pet.); HCA Healthcare Corp. v. Tex. Dep't of Ins., 303 S.W.3d 345, 349 (Tex. App.—Austin 2009, no pet.); see Tex. Workers' Comp. Comm'n v. Garcia, 893 S.W.2d 504, 518 & n.16 (Tex. 1995). A facial challenge to the constitutionality of a statute claims that a statute, by its terms, always operates unconstitutionally. Tenet Hosps. Ltd. v. Rivera, 445 S.W.3d 698, 702 (Tex. 2014); HCA Healthcare, 303 S.W.3d at 349 ("A party seeking to invalidate a statute 'on its face' bears a heavy burden of demonstrating that the statute is unconstitutional in all of its applications."). An as-applied challenge asserts that a statute, while generally constitutional, operates unconstitutionally as to the claimant because of his particular circumstances. Tenet Hosps., 445 S.W.3d at 702; Lund, 416 S.W.3d at 127.
Whether a statute is unconstitutional is a question of law, but we frequently must consider the entire record, including evidence offered by the parties. Patel, 469 S.W.3d at 87. We review challenges to the constitutionality of a statute using a de novo standard. Stockton v. Offenbach, 336 S.W.3d 610, 614-15 (Tex. 2011); Tex. Alcoholic Beverage Comm'n v. Live Oak Brewing Co., 537 S.W.3d 647, 654 (Tex. App.—Austin 2017, pet. denied) (stating that we review de novo questions of constitutionality of statutes). B. Analysis
The Second Amendment provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. CONST. amend. II. The Second Amendment confers "an individual right to keep and bear arms." Dist. of Columbia v. Heller, 554 U.S. 570, 595 (2008); United States v. Chapman, 666 F.3d 220, 224 (4th Cir. 2012).
This right, however, is not unlimited. Heller, 554 U.S. at 595, 626. In Heller, the Supreme Court noted that, historically, "commentators and courts routinely explained that the right [protected by the Second Amendment] was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." Id. at 626. The Court further stated that nothing in Heller "should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill . . . ." Id. at 626-27. Additionally, the Court stated that the Second Amendment "elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home." Id. at 635.
In Heller, the Supreme Court did not establish a specific level of scrutiny for determining whether laws impermissibly infringe upon Second Amendment rights. See id. at 634 (noting that Justice Breyer's dissenting opinion criticizes majority opinion "for declining to establish a level of scrutiny for evaluating Second Amendment restrictions"). The appropriate level of scrutiny "depends on the nature of the conduct being regulated and the degree to which the challenged law burdens the right." Nat'l Rifle Ass'n of Am, Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives (NRA), 700 F.3d 185, 195 (5th Cir. 2012) (quoting United States v. Chester, 628 F.3d 673, 682 (4th Cir. 2010)); Ex parte Lee, 617 S.W.3d 154, 166 (Tex. App.—Houston [1st Dist.] 2020, pet. ref'd) (stating, in case considering whether statute that prohibited carrying firearm in vehicle while being member of criminal street gang violated Second Amendment, that "the level of scrutiny that applies depends upon whether the law burdens the 'core' of the Second Amendment guarantee").
A regulation that threatens a right at the core of the Second Amendment—such as the right of a law-abiding, responsible citizen to use a handgun to protect his home and family—triggers strict scrutiny of the regulation. NRA, 700 F.3d at 195. A less severe regulation—one that does not encroach on the core of the Second Amendment—requires a less-demanding analysis, often called "intermediate scrutiny," in which the government must demonstrate a "reasonable fit" between the regulation and an important government objective. Id.; Ex parte Lee, 617 S.W.3d at 166 ("If a core right is burdened, strict scrutiny applies; less severe regulations on more peripheral rights trigger intermediate scrutiny.").
Two of our sister courts have considered as-applied Second Amendment challenges to Chapter 7A. See Wargocz v. Brewer, No. 02-17-00178-CV, 2018 WL 4924755 (Tex. App.—Fort Worth Oct. 11, 2018, no pet.) (mem. op.); Webb v. Schlagal, 530 S.W.3d 793 (Tex. App.—Eastland 2017, pet. denied). Both courts concluded, after reviewing federal case law considering the constitutionality of an analogous federal statute prohibiting firearm possession by individuals subject to domestic protective orders, that Chapter 7A does not restrict a "core" Second Amendment right. Therefore, they concluded that intermediate scrutiny is the appropriate standard for determining its constitutionality. Wargocz, 2018 WL 4924755, at *7; Webb, 530 S.W.3d at 809. The "core" Second Amendment right identified in Heller is the right of a "law-abiding, responsible citizen" to possess and carry a firearm for self-defense. Wargocz, 2018 WL 4924755, at *7; Webb, 530 S.W.3d at 809. In both Wargocz and Webb, the trial courts found reason to believe that the appellants committed the offense of stalking; as a result, neither appellant could be regarded as a "law-abiding, responsible citizen." Wargocz, 2018 WL 4924755, at *7; Webb, 530 S.W.3d at 809-10; see also NRA, 700 F.3d at 205 ("Heller's observation that longstanding prohibitions on firearm possession by felons and the mentally ill are presumptively valid . . . entails that the Second Amendment permits 'categorial regulation of gun possession by classes of persons.'") (internal citation omitted); Ex parte Lee, 617 S.W.3d at 166-67 (concluding that because statute prohibiting possession of firearm in vehicle by person who is member of criminal street gang "restricts possession of firearms by individuals who are part of groups engaging in unlawful activities," statute does not implicate core Second Amendment right identified in Heller and thus intermediate scrutiny is appropriate).
The same analysis applies here. The trial court found that Kloecker had engaged in family violence; Kloecker's conduct towards Lingard would constitute a felony if charged; there was reason to believe Kloecker engaged in stalking; and stalking was likely to occur again in the future. Kloecker, therefore, cannot be regarded as a law-abiding, responsible citizen. As a result, this case does not implicate the core Second Amendment right identified in Heller—the right of a law-abiding, responsible citizen to possess a firearm to defend himself and his home. We therefore follow Wargocz and Webb and apply intermediate scrutiny to determine whether Chapter 7A is unconstitutional as applied to Kloecker. See Wargocz, 2018 WL 4924755, at *7; Webb, 530 S.W.3d at 809-10.
For a statute to survive intermediate scrutiny, there must be a reasonable fit between the challenged statute and a substantial governmental objective. Wargocz, 2018 WL 4924755, at *8; Webb, 530 S.W.3d at 809. The government is not required to show a "perfect fit" between the statute and the governmental objective. Webb, 530 S.W.3d at 809 (citing Chester, 628 F.3d at 683); see also Chapman, 666 F.3d at 228 (stating that under intermediate scrutiny, government is not required to prove statute is least intrusive means of accomplishing governmental objective or that there is no burden on respondent's claimed right). The purpose of Chapter 7A "is to protect victims of various offenses, including stalking and sexual assault, and to allow these victims to seek protection from those who committed the offense." Webb, 530 S.W.3d at 809; see also Lopez v. Occhiogrosso, No. 14-17-00324-CV, 2019 WL 347336, at *7 (Tex. App.—Houston [14th Dist.] Jan. 29, 2019, no pet.) (mem. op.) (stating that "protective order is not punishment" and that primary purpose of protective order is to prevent domestic violence and protect domestic violence victims).
Our sister courts in both Wargocz and Webb concluded that the protection of victims of stalking was a substantial governmental objective, and we agree. See Wargocz, 2018 WL 4924755, at *8; Webb, 530 S.W.3d at 809-10 (citing bill analysis for Chapter 7A stating that "[p]rotective orders have been proven effective, and applicants are less likely to suffer future violence once an order is in place"); see also Chapman, 666 F.3d at 226-27 (concluding that reduction of domestic gun violence is substantial governmental objective of federal statute prohibiting person subject to domestic violence protective order from possessing firearm).
With respect to whether there is a "reasonable fit" between Chapter 7A and its objective, Wargocz and Webb observed that there are two features of Chapter 7A itself that limit the trial court's authority to restrict possession of a firearm. First, the trial court can issue a protective order under Chapter 7A—and restrict firearm possession in that order—only if it finds reasonable grounds to believe that the offender has committed at least one of certain enumerated offenses, including stalking. See TEX. CODE CRIM. PROC. ANN. art. 7A.01(a) (listing nine specific offenses for which victims of those offenses can seek issuance of protective order); id. art. 7A.03 (requiring trial court, before issuing protective order under Chapter 7A, to find whether there are reasonable grounds to believe applicant "is the victim of sexual assault or abuse, indecent assault, stalking, or trafficking"); Wargocz, 2018 WL 4924755, at *8; Webb, 530 S.W.3d at 810 (noting that Chapter 7A applies only to persons who have been shown to have engaged in certain offenses); see also Chapman, 666 F.3d at 228-29 (noting several features of federal statute that limited its reach, including application only to persons currently under domestic violence protective order and further limitation to class of persons restrained from harassing, stalking, or threatening intimate partner). As the Fort Worth Court stated in Wargocz, "the terms of the statute itself limit the scope of its applicability to cases squarely within chapter 7A's objective." Wargocz, 2018 WL 4924755, at *8.
Additionally, Chapter 7A contains a "fundamental due-process safeguard" of requiring a hearing before the trial court can issue a protective order under that chapter. See id. at *9; TEX. CODE CRIM. PROC. ANN. art. 7A.03(a) ("At the close of a hearing on an application for a protective order under this chapter, the court shall find whether . . . .") (emphasis added); see also Chapman, 666 F.3d at 228 (noting that federal statute at issue required that domestic violence protective order have been issued "after a hearing satisfying the fundamental requirements of procedural due process"). "Procedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property." Reynoso v. Dibs US, Inc., 541 S.W.3d 331, 339 (Tex. App.—Houston [14th Dist.] 2017, no pet.). Due process requires notice and an opportunity to be heard at a meaningful time and in a meaningful manner. Id.
Here, Kloecker received notice of Lingard's application for a protective order; the trial court held a hearing over two separate dates on the application; Kloecker was present at the hearing; he was represented by counsel who made arguments and objections on his behalf; he was given the opportunity to cross-examine Lingard; and he was given the opportunity to present witnesses and evidence in his favor. As in Wargocz and Chapman, the trial court's protective order containing the firearm restriction issued only after the court conducted a hearing that satisfied the fundamental requirements of due process. See Wargocz, 2018 WL 4924755, at *9; Chapman, 666 F.3d at 228.
To the extent Kloecker argues that his due process rights were violated because Chapter 7A requires the determination of whether a protective order is warranted to be made by the trial court and not by a jury, Kloecker cites no law holding that a determination by a jury—as opposed to the trial court—in such situations is necessary to satisfy procedural due process guarantees.
Finally, in determining whether Chapter 7A is unconstitutional as applied to Kloecker, we consider the evidence presented in this case. See Wargocz, 2018 WL 4924755, at *9; Webb, 530 S.W.3d at 810. Lingard presented evidence that Kloecker had made numerous threats of violence against her and her teenage son. On several occasions, Kloecker stated that he contemplated committing suicide. In one message, he asked Lingard to pull the trigger for him. Lingard was aware that Kloecker owned a firearm, and when she asked why he had purchased a firearm, Kloecker responded by stating, "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."
On another occasion, he threatened violence against Lingard, Alan, and police officers, stating, "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." In addition to blaming Lingard, belittling her, and calling her derogatory names, Kloecker repeatedly made demands and ultimatums that she see him or face the possibility of violence.
In addition, Lingard presented evidence that Kloecker was involved in the disappearance of Alan's guinea pig. Kloecker sent her a text message in which he stated that he killed the guinea pig by throwing it and its cage into a dumpster on a hot day. On two occasions, windows at Lingard's house were damaged by a BB gun, and Lingard suspected that Kloecker was responsible. Lingard also presented evidence that Kloecker continued contacting her well after she ended their relationship; Kloecker was likely the person who left negative and demeaning online reviews about Lingard on websites connected to her employers; and Kloecker made a CPS report against her after she had initiated the underlying protective-order proceedings. Lingard repeatedly testified that she considered Kloecker's conduct to be threatening, and she was afraid for her safety and that of her son.
The trial court therefore heard evidence that Kloecker was not emotionally stable; he had repeatedly threatened violence against himself, Lingard, her son, and police officers; and he had access to a firearm and had threatened violence with that firearm. When considering the evidence presented in this case and the objective of Chapter 7A to protect victims of stalking by allowing them to seek a protective order against their stalkers, we conclude that Chapter 7A reasonably fits the statute's objectives as applied to Kloecker. See Wargocz, 2018 WL 4924755, at *9; Webb, 530 S.W.3d at 810. We hold that Code of Criminal Procedure Chapter 7A, as applied to Kloecker, does not unconstitutionally infringe upon his Second Amendment right to bear arms.
We overrule Kloecker's third issue.
Conclusion
We affirm the judgment of the trial court.
April L. Farris
Justice Panel consists of Chief Justice Radack and Justices Goodman and Farris.