Affirmed as Modified and Majority and Con curring and Dissenting Opinion s

filed December 15 , 2022.

In The



## Fourteenth Court of Appeals

NO. 14

- 20

- 00696

- CV

JOSEPH BRYAN DESSENS , Appellant

V.
VICTORIA ARGEROPLOS , Appellee

On Appeal from the 280th Distr i ct Court

Harris County, Tex as Trial Court Cause No. 2020

- 19658

CONCURRING AND DISSENTING OPINION

I join in the majority opinion except as to s ection s III

. C. and III. E. The majority affirms the protective order rendered against appellant Joseph Bryan
Des s ens excep t as to t wo c ondit i o n s in the pro tective ord er : the lifetime pro hibition against possession of a firearm and Joseph ’s required attend ance of a battering
intervention and prevention program. The majority modifie s the p rotective order to
del ete tho s e two conditions.2

The maj or it y concludes that the trial court abused it s discretion when it prohibited Joseph was fro m possessing a firearm or ammunition for the rest of his
life on the basis that Joseph never physically har med or threatened to harm his

e x

- wife or her family at any po int during their relationship. Similarly, the majority
eli minates the requirement that Joseph attend a battering intervention and prevention program on the same lack of evidence reflecting physical violence or
threats of physi c al v iolence

. While I agree wi th the majority t h e r e w a s no evidence

at the hearing relat ing to a firearm o r physical violence or threats of violence
,

a rticle 7A spe cifically authorized the trial court to prohi bit Joseph from possessing
a firearm and take a n y action the trial court determine d wa s appropriate t o preven t or reduce the likelihood of future harm

. See Act of May 22
, 2 013
, 83 d Le g., R.S.,
ch

. 760 , § 2
, 2013 Tex. Gen. Laws 19 28
, 1928

– 29
, repealed by Act of May 21,
2019
, 86 th Leg ., ch. 469, § 3.01(2 )
, 2019 Tex. Gen Laws, 1 0 65, 1151 ( nonsubstantively re codifying former Tex. C ode Cr im. Proc. art. 7A.05 (a) (1), (2)(D) ; now Tex. C ode Cr im. Proc. Ann. art. 7 B .05 (a) (1), (2)(D) )

. Neither t h e former n or current statute requ ire s that the prohibition on
po ssess i n g a firearm be designed to ensure the safety of the applicant or to preven t future stalking . Further, n either t h e former n or current statute requ ire s a findin g other than that the applicant

—here Vic toria

— was a victim of stalking : (a) In a protective ord e r issu e d under this chapter, the court may: (1) order the al leged offender to take action as specified by the court that the court determ ines is neces sar y or appropriate to prevent or reduce the likel ihood of future harm to the applicant or a member of t h e appl i cant ’ s family or household; or (2) prohibit the allege d offender from:

. . . (D) poss essing a firearm, unless the alleged offender is a peace

o ffi cer, as defined by Section 1.07, Penal Code , ac tively engaged in3

employment as a sworn, full

- time p aid em p loyee of a state agency or political subdivision.

Id. (emphasis added). In other words, the sta tute allows a tr ial court to restrict

p ossession of a firearm whenever th e evidence is otherwise sufficient to support a protective order. See id

. It giv e s the t rial court the discretion to impleme nt a wide variety of conditions
, some o f which can be implemented for the lifetime of the
offender with l ittle or no constraints pla ced on the trial court by stat ute. While the
Fa mily Code similarly allows a tria l court to prohibit a person who was found to
ha ve committed family violence from p ossessing a firearm in a protective order
, the Family Code requires speci fic findings of fact to extend the duration of th e family

- violence protective ord er beyond t wo years

. Tex. F am. Code Ann. § § 85.02 2( b ) ( 6 ), . 025. 1

The question before us is whether the trial court committed reversible er r or by abus ing its dis cr etion

. See Tex. R. App. P. 4 4.1(a). 2 There was evidence

1 Family Code secti on 85.025(a

- 1 ) provides: The court may render a protective order sufficient to protect the applicant and members of the applicant ’ s family or household that is effectiv e for a period that exceeds two years if the court finds that the person who is the subject of the prot ective order: (1) committed an act constit uting a felony offense involving family violen ce against the applicant or a member of the applicant ’ s family or house h old, regardless of whether the person has been charged with or convicted of the offense; (2) caused serious bodily injury to the applica nt or a member of the applicant ’ s family or ho usehold; or (3) was the subject of two or more previous protective orders rendered: (A) to protect the person on whose behalf the current protective order is sought; and (B) after a finding by the court that the subject of the protective order: (i) has committed family violence; and (ii) is likely to commit family violenc e in t h e future. Tex. Fam. Code Ann. § 85.025(a

- 1).

2 In a civil appeal, a c ourt of appeals cannot modify the trial court ’ s jud g men t and a ffirm it a s modified without first holding t he re is reversible er ror in the trial court ’ s judgm ent. See Tex.4

supp orting the tr ial court ’ s determinat ion that Victori a was a v ictim of stal king

. T his is all that was required to a fford the tr ial court statutory discretion in placing a lifetim e prohibition o n J os eph ’ s possession of a firear m

. While the majority attempts to limit the discretion of the trial court in protec ti ve ord e rs authorize d by
former Cod e of Criminal Procedure art icle 7A (now 7 B)
, the majority offers no explanation of how the trial court abused it s di scretion when the st atute s pecifically
afforded it discretion

. 3

I beli eve this former statute , as well as the c u rrent version of the statute in
Co de of Criminal Proc edure ar ti cle 7B
, would benefit from refinement and further
limitation on trial court s ’ discre tion to avoid the unusual situati on presented here in
which a man who sent two ema il s

— one to his ex

- w i fe ’ s f r iends and family and

on e to his ex

- wife ’ s employer

— was prohi bit ed f

rom possession of a fire arm for life. However, this court must enforce the laws as written , not “ fix ” things we don ’ t like

. I diss ent to those portions of the judgment that delete t wo c o n dit i on s in the

pro tective ord er : t he lifetime pro hibition against possession of a firearm and the required attend ance of a battering in ter vention and prevention program

.

R. App. P . 43.2 ( b ), 44.1

. The modify

- and

- a ffirm

- a s

- modified rule came from the Code o f Criminal Procedure , and that rule operate s in a different fashion in c riminal appeals

. See Carmona v . St ate , 610 S.W.3d 611, 619

– 32 (Tex. App.

— Houston [14th Dist. ] 2020
, n o p et .) (Spai n , J., concurring & dissenting ). As I have previously written, “ [ i ] t i s hard to imagine Texas Rule of Appellate Procedure 43.2(b) ever being used in a civil appeal as anything other than a polite way to correct minor reversib le error in the tri al cou rt ’ s j u dgment; accordingly, in a civil appeal modifying the trial court ’ s ju dgment and affirming it as modified is identical to a Rule 43.2(c) judgment reversing the trial court ’ s ju dgment in part a nd rendering the ju dgment that the trial court should have rende r ed, except than the former is more diplomatic than the latter. ” Id. a t 621 n.6.

3 Perhap s the statute is unconstitutional , but that iss ue was not preserved for appellate revie w. See Tex. R. A pp. P. 33.1(a ).5 /s/ Char les A. Spain J u stic e

Pan el c on sist s of Justi c e s Wise
, Spain
, and Has s an ( Hassan , J., majority )

.