### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 19
- 00840
- CV

Ram Kris Netaji , Appellant

v. Vicki Roberts , Appellee

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

M E M O R A N D U M O P I N I O N
Ram Kris Netaji challenges a lifetime protective order entered against him and for the protection of Vicki R oberts and her family under Chapter 7A of the Texas Code of Criminal Procedure, which a u thorizes a trial court t o issue a protective order for someone that the trial court has reasonable grounds to believe is the victim of stalking

. 1 Roberts filed for the protective order on June 9, 2017, in response to Netaji ’ s conduct from 201 3 to 2017

. After an evidentiary

1 T h e Legi sl at ure rep ealed C hapter 7A in 2019 as part of a nonsubstant ive revision of t he Code of Criminal Procedure

. Se e Act of May 1 0 , 2 011 , 82 d Leg., R.S., ch. 13 5, § § 2 , 4 , art s
. 7A.01 (a) (authorizing a ppli cation for protective order from victi m of certai n offe nses ) , .03 ( a)(2)

- (b) (auth orizing issuance of pro tect ive ord er when trial cou rt finds re asonable grounds to bel i eve t hat ap pl ic an t i s victim of stalking ) , 2011 Tex. Gen. Laws 640, 64 0

- 41 , r e p e a l e d b y A c t o f M a y 2 1 , 2 0 1 9 , 8 6 t h L e g
. , R

. S ., c h. 469 , § 3 .01(2) , 2019 T e x . G e n
. L a w s 1069 , 1151

. Effective January 1, 2021 , C hapter 7A was re codified as C hapter 7B

. S ee Act o f May 21, 20 19 , 86th Leg., R.S., ch. 469 § § 1.02, 4.03, 2019 Tex. Gen. Laws 1069 , 1066, 1152

. We will refer to the prov isions of chapte r 7A in eff ect wh en the tria l court issued the prot ective order aga inst Netaji

.2 hear i n g , the trial court signed the protective order pro hibiting Netaji from, among other things,
p ossessing a firearm or ammunition and living in a household where those items are present

. 2
In s even issues, Neta j i c ontends that the trial cou r t erred by is su in g a protective order that he alleges impose s unconstitutional r estrictions o n his rights to freedom of speech and to possess a firearm

. Specifically , he contends that :

• the s talking statute was declar ed uncons titutional in 1996 by the Court of C r imi nal A pp eals;

• t he stalking statute i s facially unconstitutional ;

• the protective o rder is an unconstitutional prior restrain t on his speech ;

• the stalking statute is unconstitutional as applied to him because his comments were n ot threatening , assau ltive , or violen t;

• his repeated c ommen ts o n a business Faceb ook page are not stal king as a matter of la w and wer e insufficient for issuance of the protective order ;

• inadmissible hearsay affect ed the outcome of the proceeding ; an d

• C hap ter 7A of the C ode of C ri m inal Procedure v iol a t es his right to possess a firear m in hi s home

.
We will affirm the tria l court ’ s protective order.

2 B ef ore the protective

- order hearing , Netaji f i led a h abea s corpus application and motion to quas h raising a facial challenge to the con stitutionality of the stalking statute . He renew ed those cons titu tional challenges during the protective

- order hearing. Th e trial court denied habeas reli ef when it issue d the protectiv e order on October 11, 2019. Only the protective order , not the ruli ng on the habeas application or motion to quash , is referenced in “ Respondent ’ s N otice of A ppeal

. ” Even so, w e address th e cons titutional challenges to the stalking s tatut e in o ur review of the protective order

.3 BACKGROUND Evidenc e presented to the trial court d uring the protective

- order application hearing show ed that Netaji ’ s conduct t o wa rd Roberts an d h e r family had continued for years , b e g i n n i n g in 2013 when Netaji became upset ab out the payment for his requested
reprogra mming of several vehicle keys at a Lexus dealership that Roberts owned

. Netaji frig htened empl oyees and customer s at th e dealership when he b egan pacing, going down a hallway speaking to different people, screamin g profanities , and spitting on a cashier wh ile speaking to her

. 3 After his outburst , Roberts banned Netaji f rom the dealersh i p. Usin g multiple aliases an d fa ke accoun ts that law enforcement later linked to Netaji b y IP address , 4 Netaji subsequently ma de 301 posts to Facebook sites for the dealership , for charitable and c ommunity orga nizations in which Roberts and her 82

- year - old mo ther volunt eered , and for bus in es s es owned by Roberts ’ s daughter

- in

- law or the daughter

- in

- law ’ s family

. The posts consisted of r epet itive statements that Roberts

— who had no criminal history

— belonged on a sex - offender registry and allowed her stepson and othe rs to “ [b] u lly, [h] ar ass, a nd as sault a youn g disabled [c] ustomer

. ” The se posts also said, “ For a company that is involved with h elping abused children they should be ashamed. They have no business being involved with any children. They all belong in a maximum [

- ] s ecurity prison

. ” R ob erts testified

3 Netaji ’ s counsel acknowledge s that Neta ji has mental

- health issues a nd note s that initia lly, Netaji c ould not accept service of the protec tive

- o rder application b ec ause he was receiving i npatient men ta l

- he a lth t re atme nt

. The clerk ’ s record re flects that Netaji ’ s address for service of the prot ective

- order application was at the “ M eninger Cli nic ” in Houston , Texas.

4 An IP address, or In ternet

- p ro tocol address , i s “ [ t ] he 1 0

- d igit identification tag used b y comp ut ers to locate specif ic websites. ” Internet

- protocol address , B lack ’ s L aw D i ctiona ry (11th ed. 2019).4 at the protective

- order hearing that Netaji ’ s posts also accused her mother , a foun d er of the Center for Child Protection, of being a child molester. In other posts to the dealership Facebook site , Netaji made these comments about
R ob e rts and her daughter, A.A. 5 :

• GO F [

— ] YOURSELF AND YOUR SHRIVELED UP P [

— ] . YOU LOOK LIKE A TRANSEXUAL W ITH YOUR HAIRCUT AND SMELL LIK E A SEWER. NO WONDER YOU W ENT THRU 3 DIFFERENT HUSBANDS.

• [ A

. A

. ] OWNER S DAUGHTER F [

— ] F ORMER SALE SMAN

. . . THE BIG FA T B [

— ] HAS TO F [

— ] A SALESMAN MAYBE SHE MOVING ON TO THE PORTER S NOW

.

• VICKI RO BERTS LOOKS LIKE A TRANSEXUAL

. MOST MEN HAVE MORE HAIR THAN HER

. . . PROSTITUTES HAVE F [

— ] LESS MEN T HAN SHE HAS

.

• V ICKI ROBERTS IN MY OPINION IS A W [

— ]

. L OOKS LIKE A TRA N SE XU AL

. HER DAUGHTE R F [

— ] A SALESMAN. THEY PULL OFF THE SHOWROOM FLOOR. 6
Netaji also made other postings abou t A.A. Roberts testified that in those posts , Netaji not ed when A.A. had gained or lost weight, what she was wearing, where sh e was, and wh o m sh e was dating

. A fter Netaji posted that he was at the university that A.A. was a ttending , A.A. became scared and moved back home

. Netaji also posted to the Facebook site for A.A. ’ s employer , stating that A.A. was “like the Columbine kill ers” and a th r ea t to em ployees and customers while working there.

5 We use initial s when refe rring to a family member protected by the stalking order

. See Tex. Const. a rt. I, § 30(a) ( affor ding crime victims “ t he ri gh t to be treat ed w ith fairness and w ith respect for the victim ’ s dignity a nd privac y throughout the criminal justice proc ess ” and “ t he right to be re asonably protected from the accused thr oughout the crimin al justice process ” ).

6 Capitali zation, p u n ctati on , an d spellin g i n original

.5 In a ddition to his posts on several Facebook sites , Netaj i sent multiple direct communications by Facebook messenger to Roberts and her family members , including A .A. and her friends

. 7 So me of Ne taj i ’ s i ns tant messages to Roberts

— sent u nder an alias linked to
him

— said , “ KARMA IS A BITCH AND YOU ARE GETTING EXAC TLY WHAT YOU
DESERVE ” and “ KARMA IS A BITCH . I HOPE YOU REMEMBER THAT. ” Netaji ’ s expressed intent ions frightened his sist er - in

- law , who t es t ifie d at th e protective

- order hearing about a group text that Net aji sent to her and h er husband in which Netaj i threatened to commit a mass sh ooting at the dealership and sent photos of himself

“ driving on the way ” there. Th e group text

— sen t after the t r ial co urt h ad issued a temporary

o rder a gainst Netaji

— was a dmitted into evidence , containing these statements :

• I will go drive the car into the dealership showroom

. . . And kill someone t here ;

• Watch and see ;

• I will kill them ;

• Get a [n] assault rif le and s ho ot at them ’ til [] they are all dead ;

• M ake it the largest mass shooting in history ;

• I will kill as many as I can ;

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

• I decided to just crash into the building ; and

• No need for a [n] axe
.

7 Ne taji also placed multiple calls to A.A.’s boyfr iend and his employer, which Roberts s aid was an e ffort “to get hi m fired from his work.”6 A pho to of the L ex u s of Au stin dealership was included above the caption, “ I will kill them

. ” The sister

- in

- law testified that Ne taji “ sent t hose scary texts ” ; that “ he was at the location getting ready to do something, s o it was scary ” ; and that s he was conce rned that N et a ji wo ul d har m

“ people in the de alership ” and Roberts. Finally, Roberts testified about two road

- rage incident s in 2016 and 2017 while

“ driving north on 360 , which is [her] way to work , ” in whi ch Netaji confronted her while they were both dr i ving on High way 36 0

. During thos e inci dents , Roberts s aw Netaji dr iving aggressively behind and beside her vehicle, “ boxing [her] around and speeding up and then throwi ng on his brakes , ” “ r iding [her car ’ s] bumper, ” honking his horn at her, flashing hi s c a r’s lights, “flip pi ng her off,” and appeari ng to photo graph her with his phone. But Roberts explained that she was not fearful about everything Netaji did, such as when he set up Facebook
pages ca lled “LexusofAustinSucks ” and “Lexus ofLakewaySucks

. ” R at h er, it was

when he started personalizing i t to my dau ghter and showing who she was dating and the personal comments about my mother and my family and the photos of employees and their daughters. And just it was personal, it too k it away from a busine ss complaint an d more i n to, he knows what’s hap pening in o ur lives. He’s watching what we’re doing.

Roberts testified that Netaji ’ s cond uct continued after he lost a civil suit that he filed against her and des pite c ease - and

- desist letters sent t o h im . She dis cussed her fe ar of Netaji, stati ng t hat he kn o w s where she lives , that she is “ scared to death , ” and that she “ live [s] in fear daily.” She noted that she sold the dealership that had be en in her family for three generations because she was lo s ing employee s an d could n ot keep them safe. She also f eared being unable to protect he r daughter if she took over the business : “ [T] here ’ s no way I could7 have her

. . . there as a sitting duck I ju st couldn ’ t do it. So we ’ re done. He wins. ” B ecause of Netaji , Robe rts hired f ul l

- time security gua rds for her self and overnight security for her daughter. Two weeks a fter the evidentiary hearing, the tria l court heard objections to its proposed prote ctive order

. D u r i n g the latter hearing , Netaji ’ s coun s el made an oral request f o r findings of fact an d conclusio ns of law “ under Rule 296 of the Texas Rules of Civil P rocedure

. ” Cf. Tex. R. Civ. P. 296 (requiring “ filed ” request for finding s of fact and conc l usions o f law ). When findi ngs and conclu sions wer e n ot en t e red , Netaji ’ s co un sel failed to file any n otice of past due findings and conc l usions

. See id. R. 297 ; see also Ad Villarai, LLC v. Chan Il Pak , 519 S.W.3d 132, 13 7 (Tex. 2017) ( noting that p arty waives right to challenge lack of trial

- court find in g s if party f ails to fil e notice of past

- due findi ngs re quired by R ule 297 )

. On October 11 , 2019 t he trial court signed the protective order that Netaji appeal s here

.
DISCUSSION Netaji ’ s seven appellate issues involve the int ersection of several s tat utes , includ ing th ose gover ni ng the issuance of protect ive order s unde r Chapter 7A and defining the offense s of stal king and harassment. We summarize the applicable legislation be low

.

P ro tective O rders for Stalking U nder Ch apter 7A Chapter 7A of t h e C ode of Criminal Procedure a ut horizes a trial court to i ssue a protective or der “without regard to the relationship between the applicant and the alleged offender” if the trial court fin ds that the appli cant is a victim of certain crime s, including stalk ing

. See Tex. Cod e Crim. Proc

. arts. 7A.01(a)( 1), .03. B efore 2013, sub section 42 .072 (a) of the Penal Code defined th e offense of stalk ing as committing threatening conduct that causes t h e

v i c t i m to f e a r bodily injury or death fo r himself , his family mem ber , or his dating partner; or t o8 fear that an offense aga inst the victim’s property might occur
. See Act of May 19, 2011 , 82d Leg., R.S ., ch. 591 , § 1 , 2011 Tex. Gen. Laws 1432, 1432 , amended by Act of M ay 24, 2013, 83d Leg., R.S ., ch. 1278 , § 2, 2013 Te x. Gen. Laws 3231 , 3231

. But in September 2013 , the Legis lature amended sub section 42.072 (a) , expanding the definition of stalking to it s cur rent version, which include s conduct constitut ing the offense o f “harassment” under secti on 42.07 of the Penal Cod e. 8 See Tex. Pena l Code § 42. 07 2(a)

. Stalk ing is comm itted when a person :
on more than one occasion and pursuant to the same scheme or course of conduct that is directed specifically at another perso n, knowingly engages in co nduct that: (1) constit ute s an offense unde r S ection 42 .0 7 [ harassment ] , or that the actor knows or reasonably should know t he other person will regard as thr eatening: (A) bodily injury or death for the other person; (B) bo dily injury or death for a member of the other pe rso n ’s family or house hold 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 p erson, a member of the oth er person’s family or h ous eho ld, or an individ ual with who m the oth er p erson 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, ann oyed, alarm ed, abused, tor men ted, embarrassed, or offended ; and (3) wo uld cause a reasonable person to: (A) fear bodily injury or death for himself or hersel f;

8 The harassm ent statute in sect io n 42.07 of the Penal Code was amended in 2017 an d ag ain in 20 21. See Act of May 12, 2021 , 87 th Leg., R.S., ch. 178, § 1 , 2021 Te x. Gen. Laws,

___ ,

___ ; Act of May 27, 2017, 85th Leg., R.S., ch. 522, §§ 13 , 1 4, 18, 2017 Tex. G en. Laws 1400, 1407

. We ref er to the applicable version of the harass m ent s ta tute in effec t before both sets of amend ments

.9 (B) fear bodily injury or death for a member of the person’s fami ly or household or for an individual with whom t he per son has a dating relationshi p; (C) fear that an o ffense will be committed against the person’s property; or (D) feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended.

Id. B ecause Netaji’s c onduct began in December 2013 , w hic h was after the e ffective dat e of the
2013 amendment s to the Pe nal Code, the current and expanded definition of the offense of
st alking

— which includes stalking by “ harassm ent ”

— applies

. See id

. § § 42.07 ( defining off ense of harassment) , .07 2( a)(1) ( i n c l u d i n g commission of harass ing co nd uct as one w ay of

com mitting offense of stalking )

. Harassment is committed if ,
with i ntent to harass, annoy, alarm, abuse, torment, or embarrass another, th e person: ( 1) init iates communication and in the course o f th e c ommunication make s a comment, r equest, sug gestion, or proposal that is obscene; (2) threatens, in a manner reasonably l ikely to alarm the person receiving the threat, to inflict bodily injury on the per son or to commit a felony against the person, a me mbe r of the person’s family or h ou sehold, or the perso n’s property; (3) conveys, in a manner reasonably likely to alarm the person receiving the report, a false report, which is known by the conve yor to be false, that another perso n has suffered death or ser ious bodily injur y; (4) caus es the teleph one of an other to ring repeatedly or makes repeated telephone communications an onymously or in a manner reasonably likely to harass, annoy, alarm, abuse, torment , embarr ass, or offend ano ther; (5) makes a t e lep hon e call and intent ionally fail s to hang up or diseng age the connection;10 (6) knowingly permits a telephone under the perso n’s control to be used by another to commit an offense under this section; or ( 7) se nds repe ated electronic co mmunications 9 in a ma nne r reasonably like ly to harass , annoy, alar m, abuse, torment, embarrass, or offend another

.
Id. § 42.07(a). Before the trial court may issue a C hapter 7A protective orde r, it must hold a hearing to determine “whether there are reasonable grounds t o b eli eve that the appl icant is the

v ictim of . . . stalk ing.” Tex. Code Crim. Proc. art. 7A.03(a)

. The protective order may last for th e duration of the lives of the offender and victi m , id. art . 7A.07, it may apply for the protection of the applicant a nd the applicant’s “fam ily or house ho ld” members, id. , and

— with one exception inapplicable here

— prohibit the respondent ’ s possession of a firearm , id

. art. 7A.05(a)(2) (D)

. The burden of proof necessary for issuance of a Chapter 7A protective o r der is prepond era nce of the eviden ce. See Web b v. Schlag al , 530 S.W.3d 793, 803 (Tex. App.

— Eastland 2017, no pet.) (holding that “[a]fter a review of the r ecord and cognizant of the lower ‘prepond erance of the evidence’ stand ard of proof for a civil case , ” t here was so me evidence that

res pondent enga ge d in know ing behavior constituting stalking, which provided reasonable grounds for trial court to issue prot ective order).

9 The applicable version of the h arassm ent statute d efi nes an “ [e] lectr onic communi cation” as “ a transfer of signs, signals, wr iting, images , sounds, data, or in t elligence of any nature trans mitted in w hole or in part by a wire, radio, electromagnetic, ph otoelectronic, or photo

- optical sy stem , ” including “ a co mmunication init iated b y ele ctronic mail, instant messag e, network call , o r f a c s i m i l e m a c h i n e ” ; a n d “ a c om m unication made to a pager

. ” Tex. Penal Code § 42. 07 ( b ) (1).11 Consti tutiona lity of S tal king S tatute In his first three issues, Netaji con tends tha t the stalk ing statute is uncon stitutional

o n i t s fac e , that it is an unconstitutional prior restra int as applied to Netaji ’ s speech , and that it

w as declared unconstitutional in 1996 by the Cou rt of Criminal Appeals

. Netaji specifically contends that the stal k ing s tat ute is facially u nconstituti on al because it is vague and over broad and restricts speech that is protected by the First Amendment of the U nited States Constitutio n
. 10
No court has declared the stalking statute involved in this protective o rde r facially

unc onstitutional. S ee Tex. Pen al Co de § 42 .072. W hether a sta tute is facially unconstitutional is a question of law subject to de novo review. Ex parte Lo , 424 S .W.3d 10, 14 (Tex. Crim. App. 2013). A facial challenge attack s a statute it s elf as opposed to a particular app lication

. Al len

v. Sta te , 614 S.W.3d 736, 740 (Tex. Crim. App. 2019)

. Ordinarily, a facial challenge to the constitutionality of a statute can succeed only when the challenger show s that the statute is unconstitutional i n a ll of its a ppl ications. Wagner v. State , 53 9 S.W.3d 298, 312 (Tex. Crim. App. 2018)

. “ The First Amendment overbreadth doctrine provides an exception to this rule whereby a l itigant may succeed in challenging a law that regulates speech if a substantia l n umber of it s a pplications are u nconstituti on al, judged in relation to the statute ’ s plainly legitimate
sweep. ” Id. (internal quotations omitted). S till, “ there are substantial social costs created by the overbreadth doctrine when it blocks application of a law to c ons titutionally unpr otected spe ec h, or especially to constitutionally unprotected conduct. ” To avoid having these costs “ swallow the social benefits of declaring a law ‘ overbroad, ’ [courts] have insisted that a law ’ s application to protected sp eech be ‘ subst antial, ’ not only in an abso lu te sense, but also relative to the scope of

10 N eta ji ’ s complaint that the stalking statute also violates artic le I, section 8 of the Texas Co n stitut ion was not included in his trial

- court objection s to the protective order appealed here a n d is not preserved for our re view. See Tex. R. Ap p. P. 3 3. 1(a) (1)

.12 the law ’ s p lainly legitimate applications, ” “ before applying the ‘ strong medicine ’ of overbreadth invalidation

. Virginia v. Hicks , 539 U.S. 113, 119

- 20 (2003)

. In co ntrast to a f a cial challenge , a party rais in g a n “ as applied ” challenge

conce des the general constitutio nality of the statute but asserts that it is unconstitutional as applied to his particular facts and circumstances. State ex rel. Lykos v. Fine , 330 S. W.3d 904,
9 10 (Tex. Crim. App. 2011)

. A . F acial Constitutional i ty of Stalki ng Stat ute Netaji ’ s first three issues implic ate a forme r versio n of the stalking statute addressed in Long v. State , and the current version of t he stalkin g statute that , i n p art , prohib it s stalking by hara ssment

. Se e Tex. P enal Code § 42 .072(a)(1) ( ref erencin g “ cond uct that constitutes an offense un der S ectio n 42.07 ” ) ; Long v. State , 931 S.W.2d 285, 287 (Tex. Crim. App. 1996 ). Harassment is an off ense that may be committed by send ing “ re p eated electron ic communicati on s in a manner reasonably likely to harass , annoy, alarm, abuse, torment, embarrass, or offend another ” with the “ intent to harass, annoy, alarm, abuse, torment, or embarrass ” th e other person. See Tex. Penal Code § 42.07(a)( 7 ). Two of ou r si ster courts h ave held that this l anguage in the harassment sta tute

— no t the sta lking statute

— is unconstitutiona lly vague and over broad. Se e, e.g. , Ex parte Ordonez , No. 14

- 19

- 01005

- CR, 2021 Tex. App. LEXIS
519 , at *3 (Tex. App.

— Houston [1 4 th Dist.] Jan . 26 , 2021 , pet

. filed ) (mem. op., not designated for publication) ; State v. Chen , 615 S.W. 3d 376, 385 (Tex. App.

— Housto n [14t h Dist.] 2020, pet. filed ); Ex part e Barton , 586 S.W.3d 5 73, 585 (T ex. App.

— Fort Worth 20 19, pet. granted)

. 11

11 T h e majority of our sister courts have rejected these fa cial challenges to the electron ic

com munications provi sion in subsection 42.07(a)(7) and u ph eld the consti tutionality of the ha r assment statute. See, e.g. , State v. G r ohn , 61 2 S .W.3d 78, 79

- 80 (Tex. App.

— Beaumont 202 0, pet. filed) ; Tarkington v. State , N o. 12

- 19

- 00078

- CR, 2020 Tex. Ap p. LEXI S 2254, at13 Netaj i r elies heavi ly o n a case fr om one of those c ourts , Ex part e Barton , a s support for hi s vagueness and overbreadth c omplaints abo ut the face of the stalking statute , specifically with reference to stalking by harassment and to co mmunication s that are reaso n ab ly likely t o “ h arass, anno y, alarm, abuse, torment, or embarrass another

. ” 12 See Tex

. P enal Code § § 42.07(a)(7) , .072(a)(1)

. Barton held that the “ electronic com munication s ” portion of the ha rassment s tatute is vague and over broad because whether a com m un ication is “ann oying or of fe nsive ” is a “ highly subjective inquiry ” that “ wil l diffe r greatly from person to person

. ” Id. at 585

. In reaching th eir holding that the harassment statute is unconstitutional , the court noted tha t the harassment statute do e s not include a r eas onabl e - p er son standard “sufficien t to cure the failure of t he sub s ection to specify whose sensitivities were offended.” Id. at 583

. The C ourt of Criminal Appeals granted a petition for discretionary review in Barto n and submitted the ca se without argu ment on Mar ch 18, 2020. See E x parte Barton , No. PD

- 1123

- 19

.

* 8

- 9 (Tex. App.

— Tyler Mar. 18, 2020, no pet.) (mem. op ., n ot designated for p ub l ication); Ex parte Sanders , N o. 07

- 18

- 0 0 335

- C R, 20 19 Tex. A pp. LEXIS 2813, at * 12 (Tex. App.

— Amarillo Apr. 8, 2019, pet. grante d) (mem. op., not designated fo r publi cation); Ex parte Hinojos , No. 08

- 17

- 00077

- CR, 2018 Tex. App. LEXIS 1 0530, at * 1 3 (Tex. Ap p
. — El Paso Dec. 19, 2018, pet. ref ’ d) (o p ., no t des ignated f or publication); E x parte Reece , No. 11

- 16

- 00196

- CR, 2016 Tex. App. LEXIS 12649, at * 6

- 7 (Tex. App.

— Eastla n d Nov. 30, 2016, pet. ref ’ d) (mem. op., not designated for publicati on) ; Lebo v. State , 4 7 4 S.W.3d 402, 4 0 7

- 08 (Tex. Ap p.

— San Ant o nio 2 01 5, pet. ref’ d) ; Duran v. State , Nos. 13

- 11

- 00205

- CR, 13

- 11

- 00218

- CR, 2012 Tex. A pp. LEXIS 7110, at * 7

- 8 (Tex. A pp.

— Cor pus Christi

– Edinburg Aug. 23, 2012, pet. ref ’ d) (mem. op., not design ated for publicatio n)

.
12 Netaji also points to an opinion d i ssent in g f rom the denial of discretionary review in a case presenting a facial challenge to the constitutionality of the harass ment st atute , see E x parte Reece , 517 S.W.3d 108, 109 (Tex. Crim. A p p. 2017) (Keller, P. J ., dissenting) , but it does n ot represe n t th e v iew s of the majority of the Court

. See Tex. R. App. P. 69 .1 ( providing that if four judg es on Court of Criminal Appeals do not vote to gra nt petition for discretionary review, that petit i on is refused ) ; Ex p a rte McDonald , 606 S.W.3d 856, 862 (Tex. App.

— Au sti n 2020 , pet. filed ) ( not ing that dissent ’ s reasoning in Reece was not adopted by major ity of Court and that there has been n o binding de cision declaring sub section 42.07(a)(7) unconsti t utional ).14 Howe ver, e ven i f th is Chapter 7A protec tive or der had been based on a finding that Netaji committed stalking by harassment , we recently declined t o follow Barton

. See
E

x pa r te McDonald , 606 S .W.3d 856 , 86 3 (Tex. App.

— Austi n 2020, pet. filed)

. We uphel d the
h arassment statute , reasoning that subsecti on 42.07(a)(7) p rohibits only communications that a re

un protected by the First Amendment. Id. at 86 3

- 64 ( rejecti ng overbreadth an d vague ness chal lenges , co n cl uding that conduct constituting offense is defin ed with sufficient clarity, and noting that perso n who violates statute has intent to harm, not intent to engage in legitimate communication of ideas , opinions , or information)

. McDonald fo llowe d our prio r p recedents rejecting constitutional challenges to the ha rass ment statute. See Ex parte Ogle , Nos. 03

- 18

- 00207

- 00208

- CR, 2018 Tex . App. LEXIS 5955, at *18

- 19 (Tex. App.

— Austin Aug. 1, 2018, pet. ref ’d) (mem. op., not designat e d for publica tion) ( rejectin g o verbreadth challenge to harassment statute and c oncludi ng that “ subsection 42.07(a)(7) can reason ably be construed as being directed at people repeatedly using electronic communications to invade t he personal privacy of anot h er with the i ntent to inflic t e motional distr ess ” ) ; Blanchard v. State , No. 03

- 16

- 0001 4

- CR, 2016 Tex. App. LEXIS 579 3, at *8 (Te x. App.

— Austin June 2, 2016, pet

. ref’d) (mem. op., no t designa ted for publication) (noting that har assment statute does not in c lu de protecte d spe ech becaus e i t requires that actor engage in communicative co nduct w ith specific intent to harm vi ctims by inf licting some type of e motional d istress listed in stat ute, i.e. , to “harass, annoy, alarm, abuse, to rment, embarrass, or offend ” ) ; see also S cott v. State , 3 22 S.W.3d 662 (Tex. Crim. App. 2010 ) ( reject ing co nstitut ional challenge to telephone

harassment st atute with similar wording )

. Netaj i ’ s vagueness and overbreadth complaints about the face of the s talking
statute are limited to : (1) the c ommis sion of st a lk ing by harassment in subsection 42.072(a)(1) ,15 an d (2) the pr ovisions in subsection 42.07(a)(7) of the harassment statute about communications that are reasonably likely to “harass, annoy, alarm, abuse, tor ment, or embarrass a nother

. ” Although pr esented as faci al cha llenge s to the stalking statute, in substance , these are facial challenges to subsection 42.07(a)(7) of the harassmen t statute that we considered and rejected in McDonal d , Ogle , and Blanchard

. See McDonald , 606 S. W.3d at 86 3

- 64 ; Og le , 2018 Te x . App. LEXIS 5955, at *18

- 19 ; Blanchard , 2016 Tex. App. L EXIS 57 9 3, a t *8 ; se e also Ex parte Johns ton , No. 09

- 19

- 00445

- CR, 2021 Tex. App. LEXIS 2792, at *12

- 13 (Tex. App.

— Beaumont Apr. 14, 20 21, no pet.) (m em. op.) ( rejecting facial cha llenge t o c onstitut io nalit y of stalking
statute and noting that court had dec lined t o follow Barton ). W e follow ou r own preced ent , set forth in McDonald , Ogle , and Blanchard , conclud ing that the communi cations prohibited by subsectio n 42.07 (a) (7 ) are n ot the type of legitim at e communication protected by the First Amendment

. See McDonald , 606 S.W.3d at 863

- 64 ; Ogle , 2018 Tex . App . LEXIS 5955, at *18

- 19 ; Blanchard , 2016 Tex. App. LEXIS 579 3, a t *8

. To the extent that Netaji a lso complains of the portio n o f stalki ng statute th at does not include stalking by harassment , suggesting that it c hill s “ political ” speech and prevent s a person from “ repea tedly expressing his true feelings, emotions or nee ds , ” we note that “ we do not invalidate a statute fo r overb rea dth mere ly because it is poss ible to imagine some unconstitutional applications. ” State v . Grohn , 612 S.W.3d 78, 84 (Tex. App.

— Beaumont 2020 , pet . filed ) (q uoting E x parte Hinojos , No. 08

- 17

- 00077

- CR, 20 18 Tex. App. LEXIS 105 30, at * 6 (Tex. App.

— El Pas o D ec. 19, 201 8, pet. re f ’ d) (op., not designated for publication)

. T he portion of the stalking statute that does not include the offense of stalking by harassment prohibits the following :

• “ knowingly engag [ ing ] in conduct ” ;16 • that occurs “ on more than one occasio n a nd pursua nt to the same scheme or course of conduct that is directed specifically at another person ” ;

• that “ the actor knows or reasonably should know the other person will regard as threatening ” either (i) “ bodily injury or death for the other person , ” ( ii) “ bodi ly in jury 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 rela tionship ” ; or ( iii ) t hat an offense will be committed against the other person’s property ” ;

• tha t “ caus es the other p er so n, 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 i n fear of bodily injury or death or in fear that an offense will be committed against the ot her perso n ’s propert y ” ; a nd

• that “ would cause a reasonable person to fear ” either (i) “ b odily injury or death for himself or herself , ” (ii) “ bodily injury or death for a member of the person’s family or household or for an individual with whom the person has a dat i ng relatio n sh ip ” or (iii) fear that an offense will be committed against the person’s property

. Tex. Penal Code § 42.072(a) ; see Fernan dez v. Sta te , No. 02

- 18

- 00483

- CR, 2020 Tex. App. LEXIS 1925, at *2 5 (Tex. App.

— Fort Worth Mar. 5, 2020, pet. f iled) (me m . op.) ( no t i ng that

“ the stalking statute applies in a much narrower context than the harassment statute ” ). 13 Given the narrow focus of the se provisions, w e conclude that the portion of the stalking statute proscrib ing an offense separate from th e offense of stalkin g by harassment does not reach a

“ substantial amount ” of constitutionally protected conduct when judged in relation to its plainly legitimate swee p , and that a pplication of the “‘s trong medicine’ of overbreadth invalidation ” is

unwarran ted

. See Hicks , 539 U .S

. at 119

- 20 ; Wagner , 539 S.W.3d at 310. T o the extent that i t is raised , we reject the contention that this portion of the stalking statute is fa cially unconstitutional. Further , even if the harassment por tion of the stalking s tatute we r e ruled

unc o ns ti tutional , t he Code Construction Act in the Government Code i ndicat es that the re st of

13 N e taj i h as no t shown that the “ real

- w orld scena r ios ” in his brief would fall within the prohibitions of the stalking statute independent of the stalking

- by

- harassment offense

.17 the stal king statut e would remain valid

. See Tex. Gov’t Code § 311.032(c)

. Su bsection 311.032(c) of the Government Code inst ru cts t hat when

a st atute t ha t does not c o ntain a provision for severability or nonseverability , if any provision of the statute or it s appl ication to any perso n or circumstance is held invalid, the inva lidi ty does not affect other provisions or applicat ions of the statute th at can be given effe c t without the invalid provision or application, and to this end the provisions of the statute are s everabl e.

Id

. Because the stalking statute does not con tain a pr o vision a ddressing severability or nonseverabil ity and because other provision s of the st a t ute can be given effect without the harassment provision in subsection (a)(1), t he remainde r of the stalk ing statute would stand , even if the har assment portion of i t were to fa il a constitutional challenge

. See id.
B . Constitut ionality o f Stalking S ta tute As
- Applied to Netaji Netaji co ntends that the stalking statute in conjunction with Chapter 7A of the Code of Criminal Proced ure create an unconstitutional prior restraint against his speech. He opines that the protective ord e r i n this case is si m il ar to injunctions that were stru ck for prohibiting speech that was m erely defamatory

. See , e.g. , Kinney v. Barnes , 44 3 S.W.3 d 87, 92 (Tex. 2014) ( invalidating legal recruiter ’ s post

- adjudication injunction against his former emplo yer , who had publishe d d efamatory statements that recrui ter was engaged in kickback scheme , and noting that “ d efamation alone ” is in sufficient justi fi cation for restraining individual ’ s free

- speech right ) ; H ajek v. Bill Mowbray Motors, Inc ., 647 S.W.2d 253 , 25 5 (Tex. 1983) ( in v al idating injunction that prohibit ed customer from drivin g his car in community with message painted on all four sides st ating t hat car dealershi p had sold him “ a lemon ” ) ; Ex p arte Tucker , 220 S.W. 75 , 76 (Tex. 1920) ( invalidating inj unct i on pr ohibiting u n io n wor kers from “vilifying, abusi ng, or using approbrious epithets” a gainst telephone company that employed18 them )

. We d isagree that th e orders i ssued in those contexts bear simi lari ty to th e one that the tria l court found necessary here under Chapter 7A

. In Wagner v. S t a te , the Court of Crimina l Appeals concluded that w hen a prior history of abus ive conduct has been det ermined by a judge to be good cause for restraining a
person ’ s speech towards his victim, “ the First Am endment do es n o t prohibit a cou rt f rom imposing reasonable restric tions on an abuser ’ s speech for the protection of his victim

. ”
539 S. W.3d at 31 2 ( affirming defendant ’ s conviction based on statute criminalizing violation of certain court order s in specific types o f ca s es, including st al ki ng) ; s ee Kinney , 443 S.W.3d at 95 ( noting “ significant distinction ” between curtailing person ’ s libe rty of speech and penalizing
person ’ s abuse of that liberty ). Wagner also concluded that the government ’ s significant need to
regu lat e speech as a mea ns of prot ecting victims of abuse from further harm outweighs concerns about the possibility that the st atute might infringe on constitutionally protected expression

. 539 S.W.3d at 312. Here , the trial judge found that there were reas ona b le grounds to be lie ve that Roberts was the victim of Netaji ’ s stalking and that good cause exist s to restrict Net aji ’ s

c ommunication toward Roberts. Netaji omits discussion of Wagn er when com plaini ng that the protective order entered against him for s tal k ing is an uncons tit ut ional prior restraint , and we are

un persu aded that his cited cas es comp el invalidation of th is prot ective order.
C . 1996 Invalida tion of Harassment Statute in Long v. State Lastly, Netaji ’ s asserti on that th e Court of Criminal App e als declared th e st al king
statute unconstitutional with its 19 96 hold ing in Long is inaccurate because that case involve d the statute prohibiting harassment

. See 931 S.W.2d at 287 , 288 ( no ting that defendant “ was

co nvict ed under the ‘ stalking ’ prov isi on o f the 1993 haras sme nt statute ” and that his appeal

re lied prim arily o n ruling in Kramer v. State , 712 F.2d 174, 176 ( 5 t h Cir. 19 83 ), which addressed19 challenge to constitutionality of pre - 19 83 har assment statute)

. Moreover , the c urrent stalking
statute d i f f e r s f r o m the pr ovi si on in the 1993 harassment statute conside red in Long , which the
Court fa ulted for its lack of a rea sonable

- person standard , lack of a continuity

- of

- purpose requirement, and lack of a “ more spe cific m ental state ” requirement , such a s i n tent “ to place t he

re cipient in fear of death or bodily injury

. ” See id. at 290, 293 ; see al so Fernan dez , 2020 Tex. App. LEXIS 1925, at *22 ( noting that “ the stalking statute is materially different from the section of the harass ment statute that this co u rt ha s declared unc on sti tutional ” in Barton ). By cont ra st, t h e c urrent version of the stalking statute in section 42.072 contains a

“ reasonable person ” standard i n subs ec tion (a) (3) ; a continuity

- of

- purpose requirement that refe rences a “ same scheme ” or “ co urse of condu ct ” i n s ubsectio n (a) ; and a specific mental

- state requirement in subsection s (a)(1) (A) and (B) , stating that the act or engaged in co nduct that he knows or reasonably s hould know the other person will regard as thr eatening bodily injury o r deat h

. See Tex. Pe na l C ode § 42 .072(a) ( “ on more than one occasion and pursuant to the same scheme or course of conduct that is directed specifically at a nother person ” ) , id. (1 ) (A), (B) ( “ engage s in conduct that . . . the actor knows or reasonably sh oul d know the other per so n w ill
rega rd as threatening

. . . bodily injury or death for the other person . . . bodily injury or death for a member of the other person ’ s family o r house hold ” ), (3) ( “ woul d cause a reasonable person to fe ar ” )

. Thus, “ t he stal kin g statute applies in a mu ch narro wer context than the harassment
statute

. ” Fernan dez , 2020 Tex. App. LEXI S 1925, at *2 5

. Given the se sign ificant distinctions ,

w e are unpersuaded that Long ’ s i nvalidati on of a prior version of the harass ment sta t ute als o i n valid ates the cu rre nt ve rsion of th e stalking statute

. I n sum, beca use the stalking statute does not reach a substantial amount of constitutionally protected conduct, judged in relation to its plainly legitimate sweep , it is not20 facially unconstituti ona l

. See Hicks , 53 9 U .S . at 119

- 20; Wagner , 539 S.W.3d at 310. Further, Netaji ’ s con tention that the Chapter 7A protective order is an unconstitutional pr ior restraint on his speech is unpersuasive because the First Amendment does not prohibit a court f rom prot ecting victi ms fr om their abuse rs by placing certa in restr ictions on the abuser’s speech , s e e Wagner , 539 S.W.3d at 31 2 , and the pro tective order was issued only after the trial court found that there were reasona ble grounds to believe that Roberts wa s the victim of N eta ji ’s stalking an d that good cause e xists to restrict Netaji’s communication toward her

. Finally, Netaji ’ s contention that the stalking statute was declared unconstitutional in 1996 by the Court of Criminal Appeals
in Long is unpersu asi v e be cause L ong c onc er ned a “ stalkin g prov ision of the 1993 har assment
statute ” that is distinct from the current stalking statute appli cable here

. See Tex. Penal Code § 42.072(a) (1), (3) ; Fernan dez , 2 020 Tex. App. LEXIS 1925, at *22

. We o verru le Neta ji ’ s fir st, second, and t hird issues

.

Constitutionalit y of Sta lking Statute as Applied to Netaji and Sufficiency of Evidence In his fourth and fifth issues, Netaji contends that th e stal king and harassment statutes are unconstitutional as applied to hi s c o mmen ts

— which he say s were n ot threatening, assaulti ve, or v iolent

— and tha t his repeated comments on a business Facebook page are not stalking as a matter of law and were insufficient for issuance o f the protective order

. Chapter 7A states t hat a tria l c o urt “shall issue a pr otective order” if it finds th at “ther e are reasonable grounds to believe that the applicant i s the victim of

. . . stalking.” Tex. Cod e Crim. Proc. art. 7A. 03 (a), (b)

. The trial c ou rt ’ s protective or der here includes its findi ng
t hat “ [ r ] easonabl e g ro unds exist to believe that App licant h as been the victim of stalking.” Th is fact finding is the only one neces sary under Chapter 7A for issuance of the order

. See R.M.21 v. Swearingen , 510 S.W.3d 630, 633 (Tex. App.

— El Paso 2016, n o p e t.) ( “No additio nal

s howings beyond status as a cri me victi m are required to obtain the order.” ). We review the trial
court ’ s ruling on the protective order , con taining that fact finding, under the usu al factual and legal sufficiency standards. 14 See L.S. v. Sha wn , No. 13

- 1 7

- 00224

- CV, 2018 Te x. App. LEXIS
6933 , at *8 (Tex. App.

— Corpus Chri sti

– Edinburg Aug. 29, 2018, no pet.) (me m. o p.) ; Sea l s

v. Wilbourn , N o. 12

- 17

- 00208

- CV, 2018 Tex. App. L EXIS 170 8, at *2 (Tex. App.

— Tyler
Mar. 7, 2018 , pet. denied ) ( mem. op.); Webb , 530 S. W. 3d at 802; Shoemaker v. State , 493 S.W.3d 710, 71 4

- 15 (Tex. App.

— Houston [1st Dist.] 2016, no pet.) ; see also In re Doe , 19 S.W.3d 249, 253 (Tex. 2000) ( “ When the trial court acts primarily as a factfinder, appellate courts normall y review its determinat io ns under the legal and factual suff i cien cy standa rds

. ” ) ;

14 When addressing a legal

- sufficiency challenge, we consider whet her the evide nce at t h e hearing would have enabled “a reasona b le an d fair

- minded fact finder” to reach the ruling under review. Se e Gunn v. McCoy , 554 S.W.3d 645, 658 (Tex. 2018); City of Keller v. Wilson , 168 S.W.3d 802, 827 (T ex. 2005). We conside r all the evidence in th e l ight most favorable to the pr evailing p a rty, ma king every r easonable inference in favor of that p arty, and di sregarding contrary evidence unless a reasonable fact finder could not. See Bos v. Smith , 556 S.W .3d 293, 300 (Tex. 201 8); C ity of Keller , 168 S. W .3d at 827; Webb v. Schlagal , 530 S.W.3 d 793 , 8 0 2 (Tex. App

. — Eastland 2017, pet. denied ) . When m ore than a s cintilla of evidence supports the issuance of a protective order, we will overrule the legal

- sufficiency issue. See Web b , 53 0 S.W.3d at 8 0 2

. W he n addressing a factual

- suffici ency chall e nge, we must consid er and weigh all of the evidence in th e record per tinent to that finding, and we may set aside the finding only if we determine that the credible e vidence supporting the findi ng is so weak , or s o c ontrary to the overwhelming w eight of a l l the e vidence, tha t the answer should be set aside and a new trial o rdered. Crosstex N. Tex. Pipeline, L.P. v. Gardiner , 505 S.W.3d 580, 615 (Tex. 2016); see Webb , 530 S.W.3d at 80 2

. Whe n con ducting a fac tual

- s uf f iciency review, we must not s ubstitute o ur ju dg ment for tha t of the fact finder, who “is the sole judge of th e credibility of witnesses and the weight to be giv en to their testimony.” Golden Eagle Archery, Inc. v. Jackson , 116 S .W.3d 757 , 761 (Te x. 200 3) ; Webb , 530 S.W.3d at 80 2

. Th e fact fin d er ma y resolve inco nsistencies in the testimony of any wi tness , McGal liard v. Kuhlmann , 722 S.W.2d 694, 697 ( Tex. 1986) , draw inferen ces from the facts , and choose between conflicting infer ences , Ramo, Inc. v. Eng li s h , 500 S.W.2d 461, 467 (Tex. 1973)

.22 Eckchum v. State , No. 03

- 15

- 00270

- CV, 2 016 Tex. App. LEXIS 7096, at *5

- 6 (Tex. App.

— Austin July 7, 2016, no pet.) (mem. op.) (reviewing legal and factual sufficiency of ev ide nce supporting protecti ve order issued for stalking under Ch a pter 7A )

. Ou r analysis of whether the stalking and haras sment st atutes are unconstitutional as applied to Netaji , as he note s, “ dovetails with a legal sufficiency ana l ysis ” concerning whether there was an y evidence t ha t his conduct constituted stalkin g to support i ssu ance of the protective order. 15 Netaji conte nds that there was “ no evidence ” that h is conduct involved threats of bodily injury or death and that any finding to that effect wa s “ a gainst the weight and pre po nderance of the evidence as to be clea rly wrong an d unjust. ” As support for th ese contention s , Netaji says that “ the bulk ” of the evidence at the protective

- order hearing consisted of his Facebook
comments co ntaining his “ compla ints ” and “ opini ons ” ; tha t the only evidence of a threat was from a group tex t that was not sent to Roberts ; and that he was mere ly expressing his views about a business

. He asserts that the trial court grant ed a protective order “ for a business owner
aga inst a dissatisfied custo me r” and that the basis for the ord e r “ w as the co nti nued commentary on Facebook

. ” We disagree. In add ition to the 301 Facebook posts using multiple aliases and fake accoun ts later linked to Netaji

— many to charities and organizat ions that had “ nothing to d o with the car dealership ”

— Net aji ’ s c onduc t over a period of years included d irect messag es to Rob erts and her

15 Netaj i complains th at the trial court ’ s findings do not “ d istinguish which manner and means of stal king was committed

. ” But as we have noted, Netaji ’ s counsel failed to fo llow the proper p roced ure for obtai ning t ri a l

- court findings beyond what was alread y incl ud ed in the pr ote ctive order, and a ny c omp laint in t hat regard i s waived

. See Tex. R. Civ. P. 296 , 297; see also Ad Villarai, LLC v. Chan Il Pak , 519 S.W.3d 132, 13 7 (Tex. 2017) ( noti ng th at p arty waiv es rig ht to challenge lack of trial co urt findin g s if pa rty fails to file notice of past

- due findi ngs requ ired by R ule 297 )

.23 family and road

- rage incidents

. Specifically, Netaji sent instant messages to Roberts telling her that “ KARMA IS A BI TCH. I HOPE YOU REMEMBER T HAT ” and “KARMA IS A BITCH
AND Y OU A RE GE TTING EXA CTLY WHAT YOU DESERVE

. ” 16 Some of the direct

me ssages a nd posts occurred aft er two cease

- and

- desist letters were sent to Neta ji, when he should have reasonably known that his cond uct would cause Roberts t o fear bodily injury to her

or her fami ly or th e commission of an offense against her dealersh ip prope rty

. R oberts testified abo ut how Netaji included her daughter as a target of his gestures , how he “ was trying to get her fire d ” from her employer with p os ts accusing her of being “ lik e the Columbin e killers” and a threat to employees and custom ers . I n summary, she

s aid, “He was trying to scare us

. ” That i ntent was uncontroverted

. Roberts testified that Netaji

“ knows what’s ha ppening in our lives. He’s w atching what we’re doing. ” R obert s also re called that a fter Netaji posted that he was at the univ ersity that her daughter was a ttending , her daughter became “ scared and she ju st moved back home

. ”
O ther evidence included the r oad

- rage incidents in 2016 a nd 2017. During those
in cide nts, while “dr iving north on 360, which is [her] way to work,” Roberts saw Netaji driving aggressively behind and besid e her ve hicle, “boxing [her] around and speeding up and then throwing on his br akes,” “ r iding [her car ’ s] bu mper, ” honking his horn a t he r, fl ashing hi s car’s lights, “flipping her off,” and appeari ng to photograph her with his phone. Roberts testif ied th at

s he w as “ very very nervous ” at the time , and she appeared “ fearful ” and “ ups et ” w hen discussi ng the 201 7 road

- rage incident with a law

- enfo rcement o ffic er. Roberts testified that “ the bar kept escalati ng ” with Netaji , and “ so yeah I ’ m scared to death. I live in fear daily. ” Roberts also

16 N o tably, Netaj i o m its the la st half of th ese message s when referring to this evidence.24 explained that b e cause of Netaji, she hir ed full

- time security guard s for herself and overnight

sec urity for her daughter.
C onsidered in the light most fa vorable to the trial court ’ s ruling, this record shows that t he tria l court , as a reasonable fact finder, could have f ound that more than a scintilla of evidence establ i s hed t hat Netaji , “ on more tha n one occasion and pursuant to the same scheme or course of conduct ” that was “ directed specifically at ” Roberts, “ know ingly en gaged in conduct ” :

• t hat he kn ew or r easonably should have know n Robe rts would regard as threateni ng bodily injury for her or for a me mber of h er family or household or that an offense would be committed against her dealership property ;

• that cause d Roberts or a member of her family or household to be placed in fear of bodi ly in

jury or in fear that an of fense w ould be comm itte d aga inst her dealership property ; and

• that would cause a reasonable person to fear bodily injury for himself or herse lf or fo r a member of the person’s family or fear that an offense w ould be committe d against the person’s proper ty

.

See Tex. Penal C od e § 42. 072 (a)

. From this record, we conclude that the trial court had some evidence that Netaji committed the offense of stalkin g , and that the trial court had reasonable grounds to believe Roberts was a victim of that stalking, wh i ch supported i ssuance of the
p rotective order under Chapter 7A

. See Tex. Code Crim. Proc. art. 7A.03; Tex. Penal Code § 42.072. Further, after consider ing and weighing the same evidence in a neutral light under the applicable factual

- s ufficiency standard , we conclude that th e cr edibl e evidenc e supporting the trial court ’ s fin ding that “[r]easonable grounds exist to believe that Applicant has been the vic tim of stalking ” is not “ so contrary to the overwhelming weight of all the evidence that the answer sho ul d be set aside and a ne w tri al ordere d. ” See Crosstex N. Tex. Pipeline, L.P. v. Gardiner , 505 S.W.3d 580, 615 (Tex. 2016) ; see also Webb , 530 S.W.3d a t 80 2

. Accordingly, we conclude25 t hat t here was l egally and factually suff icient evidence to support th e trial c ourt ’ s issua nce of th e protect ive order against Netaji under Chapter 7A and that the stalking statute as applied t o him is constitutiona l

. 17 We overrule Netaji ’ s fourth and fifth issues.
Hearsay comp laint In his si xth issue, Netaji contends th at “ inadmissible hear say ” affe cted the outcome of the protective

- order proceeding

. He complains about the a dmission int o evidence of the group

- t ext stat ement s , attributed to h im b y his sister

- in

- law as a recipient of the group text on he r phone , express in g plans to carry o ut a ma ss sh ooting at the dealership

. We review a complaint about the trial court ’ s admi ssion of evidence under an abuse

- of

- d iscretio n standard. Brookshire Bros., Ltd . v. Aldridge , 438 S.W.3d 9, 27 (Tex. 20 14)

. A trial court abuses it s discretion when it acts with out regar d for guiding rules or principles.
U

- Haul Int ’ l v. Waldrip , 380 S.W. 3d 118, 132 (Tex. 2012)

. To obtain r ev ersal based on a trial
court ’ s ruling admitting evidence, the party must first s how that the trial court did in fact commit

error
. Se e Gee v . Liber ty Mut. Fire Ins

. , 765 S.W.2d 394, 396 (Tex. 1989)

. Texa s Rule of Evidence 802 prohibits hearsay excep t as pro vided by statute or oth er rule prescribed pursuant to statu tory authority. See Tex. R. Evid. 802. Hears ay is defined

as a sta t ement , other t han one made by the declarant while testifying at the curren t trial o r hearing, that a party offers in evi dence to prove t he truth of the matter asserted in the statement.

17 We need not address Neta ji ’ s challeng e to t he suffi ci ency of the evidence s upporting s talki ng by harassm ent or the constitutionality of the ha rassment stat ute as applied to him because we have upheld the sufficiency of the evidence supporting the other possible stalking fin d ing, which alone p rovide s g rounds for a Chapter 7A prote ctive orde r
. Se e R usso v. Bernal , No. 03

- 17

- 00551

- CV, 2019 Tex. Ap p. LEXIS 951, at *18 (Tex. App.

— Austin Feb. 12, 2019 , no pet. ) (mem. op.).26 I

d. R. 801(d). A statement is not hearsay if t he statement is off ered agai nst a par ty and is the party ’ s own statement in either an individual or repres entative capacity. Id. R. 801(e)(2)( A).
He re, the “ declarant ” in the group t exts is Netaji

. See id. R

. 801(b) (defi ning

“ declarant ” as “ the person w ho made the state ment ” ). Th e text mes sage s

— which offered insight concerning Netaji’s intentions toward Roberts, her employees, and her prope rty

— w ere offered at the protect ive

- order hearing against Neta ji and contain ed his own statements in his individua l capacity . Thus, the text messages were not “ inadmissible hearsay ” that the trial court erred by admitting into evid ence , but admi ssion s b y a party oppon ent. Se e id. R. 801(e)(2)(A)

. Because the complained

- of evidence wa s not hearsay, we overrule Netaj i ’ s sixth issue

.

Seco nd
- Ame ndment C h allenge to P rot e ct ive
- O rder R estriction In his seventh and final issue, Netaji contends that the fir earm - possession restric tion in the protective orde r v i olate s his constitutio nal righ t to possess a firear m in hi s ho m e . He al s o conte nds that t his alle g ed violation receives “ strict scrutiny ” on appeal

. The Second Amendment to the United State s Consti tution provides that “ [ a] well regulated Militia, being necessary to the security of a free State, the right of the pe o p le to keep and bea r Arms , shall n ot be infringed. ” U.S. Const. amend II. The Supreme C our t has held that

a ban on handgun poss ession i n the home for self

- def ense violates the Second Amendment

. District of Columbia v. Heller , 554 U.S. 570, 635 (2008)

. A rticle 7A.05(a )(2) (D) of the Cod e of Criminal Procedure authorizes a trial court issuing a chapter 7A protective order to prohib it the

a lleged offender from po ssessing a firearm. See Tex. Code Crim. Proc. art. 7A.05(a)( 2)(D)

.27 A. Intermediate S crutiny A pplies
Texas cour ts hav e consid e red as - applied Second Amendment challenges t o th e firearm restrictio ns in Ch apter 7A protective ord ers
. See Kloecker v. L ing ar d , No. 01

- 19

- 00533

- C V , 2021 Tex. App. LEXIS 4069, at *24

- 26 (Tex. App.

— Houston [1st Dist.] Ma y 25, 2021, pet. denied ) (me m. op.) ; Wargocz v . Br ewer , No. 02

- 17

- 00178

- CV, 2018 T ex. App. LEX IS 8339, at *16 (Tex. App.

— Fort Worth Oct. 11, 2018, no pet.) (mem. op.); Webb , 530 S.W.3d at 809. A s an initial matter, t hese c ourts concluded

— based on federal ca ses considering the consti tutiona li ty of an analogous fede ral s tatute prohibiting firearm po sse ssion by individuals subject to dom estic
pr otective orders

— that c hapter 7A does not restrict a “core” Second Amendment right a nd t hus, intermediat e - le vel scrut in y , rather than s tr ic t scru tiny, i s the prop er s tandard for determining the question of its c onstitutionality. Kloecker , 2021 Tex. App. LE XIS 4069, at *24 ; Warg ocz , 2018 T ex. App. LEXIS 8339, at * 16 ; Webb , 530 S.W.3d at 8 09. These c ourts noted that t he “ core” S econd A mend ment r ight id en tified in Heller is th at of a “law

- abiding, responsible c itizen” to possess and carry a fi rea rm for sel f

- defense. See
554 U. S. at 63 5 ; Kloecker , 2021 Tex. App. LEXIS 4069, at *24 ; Wargo cz , 2018 T ex. App. LEXIS 8339, at * 1 9 ; Webb , 530 S

. W.3d at 80 9

. But i n all three of th e Texas cases, the trial courts found re ason to believe that the res pondents c ommitted the offen se of stalki ng, so n one

c ould be regarded as a “law

- abiding, responsible citizen.” See Kloecker , 2021 Tex. Ap p. LEXIS
4069 , at *2 5

- 26 ; Wargo cz , 2018 T ex. App. LEXIS 8339, at *1 9

- 20 ; Webb , 530 S.W.3d at 809

- 10; see also United States v. E merson , 270 F.3d 203, 261 (5th Cir. 2001) (“[I]t is clear that felons, infants and those of unsound mind may be prohibited fro m possessing fi r earm s.”). The s am e applies to Netaji here. The trial court found reason t o believe that
Ne taj i had engaged in s talking conduct , and thus, he c a nnot be considered a la w - abi ding,28 responsible ci tizen. Bec ause a core Second Amendment right is not involved i n th is ap p eal , we

a

pply intermediate scrutiny, and not strict scrutiny as Ne taji contends , in determining w het her Chapter 7A ’ s firearm

- possessio n restr i ction is unconstitutional as applied to him

. See Kl oecker , 2021 Tex. App. LEXIS 4069, at *2 5

- 26 ; Wargo c z , 2 018 T e x. App. L EXIS 8339, at *1 9

- 20 ; Webb , 530 S.W.3d at 809

- 10

. A sta tute passes i ntermediate scrutiny if t here is a reasonable fit betwe en t he challenged statute and a substantial governmental obj ective. See Kloecker , 2021 Tex. Ap p. LEXIS 4069, a t *2 6 ; Warg ocz , 20 18 T ex. App. LEXIS 8339, at * 20 ; Webb , 530 S.W.3d at 809

. The objective of C hapter 7A is “ to pro tect vic tims of various crimin al offenses, including stalking, and to allow those victims to seek protection from those who c om mitted the off e nse. ”
See Kloeck er , 2021 Tex. App. LEXIS 4069, at *2 6 ; Wargocz , 2018 T ex. A pp. LEXIS 8339, at

* 20 ; Webb , 530 S.W. 3d at 80 9

. We agree with o ur sister courts ’ conclusion s that protecting stalking victims is a substantial governmen tal objec ti ve and further , tha t “ the terms of the statute itself limit the scope of its applicability to cases squarely within chapter 7A ’ s objectiv e. ” See Kloecker , 202 1 Tex. App. LEXIS 4069, at *2 6

- 2 8 (noting that trial court c an prohibit possession of firearm i n protective ord e r on ly if it find s reasonable grounds to believe that offender committed one of enumerated offenses and only after hearing on protective

- order a pplication) ; Wargocz , 2018 T ex. App. LEXIS 8339, at * 2 1

- 2 3 ( same) ; see also Tex. Cod e Crim. Pro c. art. 7A. 03 (a) , (b) , . 05( a)(2)(D ).
B. Constitutionality As Applied to Netaji In d et ermin i n g whe ther Chapter 7A ’ s firearm

- possession restriction is
unconst itutional as applied to Netaji , we must consider t he evidenc e presented to the trial court

. Th e record re f lect s tha t Neta ji had me n tal

- health issues requ iring inpa tient hospitalization and29 medication , t hat he sent instant messages to Rob erts tellin g her that “KARMA IS A BITCH
AND YOU ARE GETTING EXACTLY WHAT YOU D ESERVE , ” and that he was involved i n two road

- rage i nci d ents w ith Rob er ts . Th ere was evidence that while a temporary protective order was i n effect against hi m, Netaji thr eatene d to “ [ g ] et a [ n ] assault rif le and shoot at them ’til[] they are all dead , ” an d “ [m] ake it the largest mass shoot in g in history

. ” H i s plan s to

com mi t the mass shooting a t the deal ership were sent with photos of the Le x us of Austin deal ership and of himsel f “driving on the way” there

. The tria l court heard testimony that these

mess ages sparked concern that Netaji wo ul d harm “people in t he dea lership ” and Roberts. Roberts testified that Neta ji “ knows what’s happening i n our lives , ” that “ [h] e’s watching wh at we’re do ing , ” and that he knows where she lives . Roberts described being “ scared to death ” and “liv [ing] in f ea r daily

. ” Add i t i ona ll y, s he sai d t hat b e cause of Netaji, she hired full

- time security guards for hersel f and overnight security for her daugh ter. Afte r c onsidering the evidence presented to the trial court and Chapte r 7A ’ s objective of protect ing vict im s of stal kin g b y all owing them t o s eek a protective order against th eir stalkers, we conclude that C hapt er 7A reasonably fits the statute ’ s ob jectives as applied to Netaj i and further, that the firearm

- possession restri ction authorized by Chapter 7A is n ot unconstitutio n al as appli ed to Net a ji

. Accor dingly, w e overrule Netaji ’ s seventh issue.

C ONCLUSION W e affirm the trial court ’ s protective order.

___ ______ ______ _____ ______________________ Darlene Byrne , Chief Justice30 Before Chief Justice By rne, J ustices Ba ker and Triana
Aff i rmed
Fil ed: No vember 12, 202 1