Active 20386168.3 NO. 03-15-00270-CV

________________________ ______________________ ____________________ IN THE THIRD CO URT OF APPEALS AUSTIN, TEXAS

________________________ ______________________ ____________________ SUZANNA ECKCHUM Appellant,

v. THE STATE OF TEXAS FOR THE PROTECTION OF HAL KETCHUM Appellee.

________________________ ______________________ ____________________ On Appeal from the County Court at Law #2, Comal County, Texas, Ca use No. C-2014-1690C, the Honorable Charles A. Stephens, Judge Presiding

BRIEF OF APPELLANT
Mysha Lubke B AKER B OTTS L.L.P. State Bar No. 24083423 98 San Jacinto Blvd., Suite 1500 Austin, TX 78701 (512) 322-2500 (512) 322-2501 (fax) mysha.lubke@bakerbotts.com

A TTORNEY FOR A PPELLANT S UZANNA E CKCHUM ACCEPTED 03-15-00270-CV 6631778 THIRD COURT OF APPEALS

AUSTIN, TEXAS 8/24/2015 10:32:35 PM JEFFREY D. KYLE

CLERKActive 20386168.3 ii TABLE OF CONTENTS Page Table of Aut horities ................................................................................................. iv Identity of Parties and Counsel .............................................................................. viii Statement on Citation to the Re cord .......................................................................... x Statement Regarding Or al Argument ...................................................................... xi Statement of the Case .............................................................................................. xii Issues Present ed ..................................................................................................... xiii Introduction ................................................................................................................ 1 Statement of Facts ...................................................................................................... 3 I. The parties initially met in either 1994 or 1995, depending on who testified and when . ................................................................................ 3 II. The parties both moved to th e Texas Hill Count ry in 2013.......................... 4 III. The parties began running into each other at various locations in the Texas Hill C ountry in 2014. ................................................................ 5 IV. The evidence shows that the pa rties disagree as to when and where they encountered each other. .............................................................. 6 Summary of Ar gument............................................................................................. 14 Argument.................................................................................................................. 16 I. Assuming the State properly requested a stalking protective order, the interaction between the applicable civil and criminal statutes required the State to prove the criminal offense of stalki ng occurred. ....................................................................... 16 II. The evidence was legally and factually insufficient to show Hal was the victim of stalki ng..................................................................... 20 A. There is insufficient eviden ce to conclude that Suzanna knew her alleged c onduct would result in Hal’s fear for his life. ................................................................................................. 22 B. There is insufficient ev idence that Hal regarded Suzanna’s alleged warning to him—“[M]ess with me and you will be sorry”—as threatening bo dily injury or death. ................. 25 C. There is insufficient evidence that any reasonable person would view Suzanna’s presence, especially with cameraActive 20386168.3 iii and recording device, as a “scheme” of threatening conduct directed “specifica lly” towards Hal. ...................................... 28 III. As applied to Suzanna, th e statutory scheme at issue unconstitutionally criminali zes protected speech. ...................................... 32 IV. The trial court erred in a nu mber of discretionary rulings, which compounded, led to an unf air hearing and resulted in this restrictiv e order. ................................................................................... 36 A. The trial court erred in granting a protective order based on false testimony in violation of Suzanna’s due process rights. ................................................................................................... 36 B

. The trial court further erred in granting relief— specifically, an order with a lifetime duration—that was not requested in the applicati on for protective order. ......................... 42 C. The trial court erred in ex cluding testimony relevant to Hal’s allega tions. ................................................................................. 46 D. The trial court erred in c oncluding that its order was necessary. ............................................................................................ 49 Conclusion a nd Prayer ............................................................................................. 51 Certificate of Co mpliance ........................................................................................ 53 Certificate of Service ............................................................................................... 54 Appendix .................................................................................................................. 55Active 20386168.3 iv TABLE OF AUTHORITIES Page(s) C ASES Allen v. State , 218 S.W.3d 905 (Tex. App.—Bea umont 2007, no pet.) .................................... 23 City of Keller v. Wilson , 168 S.W.3d 802 (Tex . 2005) .............................................................................. 20 Cohen v. California , 403 U.S. 15 (197 1) .............................................................................................. 33 Connell v. Town of Hudson , 733 F. Supp. 465 ( D.N.H. 1990) ......................................................................... 34 Cunningham v. Parkdale Bank , 660 S.W.2d 810 (Tex .1983)................................................................................ 42 Daniels v. Funes , 03-10-00317-CV, 2011 WL 2437692 (Tex . App.—Austin June 17, 2011, pet. denied ) .................................................................................................... 20, 21 Ex Parte Chabot , 300 S.W.3d 768 (Tex. Crim . App. 2009 ) ........................................................... 37 Ex Parte Chavez , 371 S.W.3d 200 (Tex. Crim . App. 2012 ) ........................................................... 37 Ex parte Ghahremani , 332 S.W.3d 470 (Tex. Crim . App. 2011 ) ........................................................... 37 Ex parte Thompson , 442 S.W.3d 325 (Tex. Crim . App. 2014 ) ........................................................... 34 Finley v. Finley , 02-11-00045-CV, 2015 WL 294012 (Tex. App.—Fort Worth Jan. 22, 2015, no pet. ) ...................................................................................................... 36 Franklin v. Benton-Elam , 06-13-00126-CV, 2014 WL 1722165 (Tex . App.—Texarkana Apr. 30, 2014, no pet.) ..............................................................................24, 25, 26, 28, 29Active 20386168.3 v Garcia v. State , 212 S.W.3d 877 (Tex. App.—Aus tin 2006, no pet.) .......................................... 33 Gitlow v. New York , 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138 (192 5) ............................................. 33 Godfrey v. Godfrey , 03-07-00220-CV, 2008 WL 3166328 (Tex . App.—Austin Aug. 8, 2008, no pet.) ................................................................................................................ 21 Hunt v. State ex rel. K.C. , 03-11-00352-CV, 2012 WL 3793283 (Tex. App.—Austin Aug. 31, 2012, no pet.) ................................................................................................................ 37 In re Salgado , 53 S.W.3d 752 (Tex. App.—El Paso 2001, orig. proc eeding) ........................... 36 In re Wean , 03-10-00383-CV, 2010 WL 3431708 (Tex. App.—Austin Aug. 31, 2010, no pet.) ................................................................................................................ 51 James v. Hubbard , 21 S.W.3d 558 (Tex. App.—San Antonio 2000, no pet.) .................................. 36 Long v. State , 931 S.W.2d 285 (Tex. Crim. A pp. 1996) ............................................... 17, 33, 35 McGowan v. State , 375 S.W.3d 585 (Tex. App.—Houston [14th Dist.] 2012, pet. ref d) ................ 22 Molett v. State , 05-08-00728-CR, 2009 WL 824761 (Tex. App.—Dallas Mar. 31, 2009, pet. ref’d ) ............................................................................................................. 44 Moreno v. Moore , 897 S.W.2d 439 (Tex. App.—Corpus Ch risti 1995, no wr it) ...................... 42, 43 Ortiz v. Jones , 917 S.W.2d 770 (Tex . 1996) .............................................................................. 21 Red Lion Broadcasting Co. v. F.C.C. , 395 U.S. 367 (19 69) ............................................................................................ 33Active 20386168.3 vi Sanders v. State , PD-0849-11, 2012 WL 11423 60 (Tex. Crim. App. Apr. 4, 2012) ..................... 22 Scott v. State , 322 S.W.3d 662 (Tex. Crim . App. 2010 ) ........................................................... 34 State v. Hanson , 793 S.W.2d 270 (Tex. App.—W aco 1990, no wr it) ........................................... 33 Teague v. State , 06-14-00053-CR, 2015 WL 2236642 (Tex . App.—Texarkana May 13, 2015, no. pet. h.) ................................................................................................. 23 Teel v. Shifflett , 309 S.W.3d 597 (Tex. App.—Houston [14th Dist.] 2010, pet. denied) ............. 42 Uniroyal Goodrich Tire Co. v. Martinez , 977 S.W.2d 328 (Tex . 1998) .............................................................................. 20 Wilson v. State , 448 S.W.3d 418 .................................................................................................. 34 S TATUTES Chapter 85 of the Texas Family Code ............................................................... 16, 43 Tenn. Code Ann. § 36-3-605 ..................................................................................... 7 Tenn. Code Ann. § 39-17-315 ................................................................................... 7 Tex. Crim. Proc. Code §7A ..................................................................... 1, 16, 42, 46 Tex. Crim. Proc. Code §7A.01(a)(1)(2 ) ............................................................. 16, 17 Tex. Crim. Proc. Code §7A.03 ................................................................................ 45 Tex. Crim. Proc. Code § 38. 46 ................................................................................ 47 Tex. Fam. Code A nn. § 82.008 ................................................................................ 38 Tex. Fam. Code §71.001 et seq . ............................................................................... 16 Tex. Fam. Code § 71.004(1) .................................................................................... 44Active 20386168.3 vii Tex. Fam. Code §71.0021(b) ................................................................................... 44 Tex. Fam. Code § 85.001 ............................................................................. 16, 43, 44 Tex. Fam. Code §85.021 .......................................................................................... 45 Tex. Fam. Code §85.025(a)(1 ) ................................................................................. 45 Tex. Pen. Code A nn. § 22.01 ................................................................................... 44 Tex. Pen. Code §25.07 ............................................................................................. 32 Tex. Pen. Code §42.07(a)(2) .................................................................................... 18 Tex. Pen. Code § 42.072 ..............................................................1, 14, 19, 20, 22, 34 O THER A UTHORITIES Senate Bill 82 Bill Analysis Acts 2011, 82nd Leg., ch. 591 (S.B. 82), § 3 ............. 47 Tex. R. App. P. 43.2(b) ............................................................................................ 51 Tex. R. Civ. P. 301 ................................................................................................... 42 U.S. Const. amend. I ................................................................................................ 32Active 20386168.3 viii NO. 03-15-00270-CV

________________________ ______________________ ____________________ IN THE THIRD CO URT OF APPEALS AUSTIN, TEXAS

________________________ ______________________ ____________________ SUZANNA ECKCHUM Appellant,

v. THE STATE OF TEXAS FOR THE PROTECTION OF HAL KETCHUM Appellee.

________________________ ______________________ ___________________ On Appeal from the County Court at Law #2, Comal County, Texas, Ca use No. C-2014-1690C, the Honorable Charles A. Stephens, Judge Presiding

IDENTITY OF PARTIES AND COUNSEL Pursuant to Texas Rule of Appe llate Procedure 38.1(a), Appellant Suzanna Eckchum provides this list of all parties to the trial court’s judgment and the names and addresses of all trial and appellate counsel in Eckchum v. The State of Texas for the Protection of Hal Ketchum , No. 03-15-00270-CV on Appeal from the County Court at Law #2, Comal Co unty, Texas, Cause No. C-2014-1690C, the Honorable Charles A. St ephens, Judge Presiding: Appellant: Suzanna Eckchum Appellee: The State of Texas for the Protection of Hal KetchumActive 20386168.3 ix Counsel for Appellant in this Court: Mysha Lubke Baker Botts L.L.P. 98 San Jacinto Blvd., Suite 1500 Austin, Texas 78701 Counsel for Appellant below: Lynne Berry Morris P.O. Box 1343 Wimberley, Texas 78676 Counsel for Appellee in this Court: Office of Jennifer A. Tharp Comal County Criminal District Attorney 150 N. Seguin, Suite 307 New Braunfels, Texas 78130 Counsel for Appellee below: Nick Robinson Office of Jennifer A. Tharp, Comal County Criminal District Attorney 150 N. Seguin, Suite 307 New Braunfels, Texas 78130Active 20386168.3 x STATEMENT ON CITATI ON TO THE RECORD The record on appeal consists of a four-volume Amended Reporter’s Record filed in July 2015 (cited as volume number, the abbreviation “RR,” followed by the page number, e.g. 2RR103); a one-volume Clerk’s Record filed in February 2015 (cited as “ICR,” followed by page numbe r); a one-volume Supplemental Clerk’s Record filed in March 2015 (cited as SC R, followed by page number); a onevolume “Third Supplemental Clerk’s Reco rd” filed in May 2015 (cited as 3SCR, followed by page number); a one-volum e “4th Supplemental Clerk’s Record” (cited as 4SCR, followed by page number); a Second Supplemental Reporter’s Record (cited as 2SRR, followed by page number); and an anticipated additional supplemental reporter’s record which has yet to be properly filed with the clerk of the court. In accordance with Tex. R. App. P. 34.6, Appellant made multiple requests for this anticipated supplementa l reporter’s record that would include additional proceedings omitted from the Second Supplemental Reporter’s Record at the motion for new trial hearing. 4SCR4-33. This supplemental reporter’s record is forthcoming and has not been cited herein.Active 20386168.3 xi STATEMENT REGARDING ORAL ARGUMENT This case involves the cons titutionality and interpretation of criminal statutes under which a civil protective order was en tered, which prohib its Appellant from exercising her First Amendment rights for the rest of her lifetime. Because of the complexity inherent in parsing the statut ory language at issue here, and because of the permanent effects on Appellant of the trial court’s interpre tation of relevant statutes, Appellant believes the Court will be nefit from oral argument. Further, the facts of this case are unusual, and the Cour t would benefit from an explanation of the factual effect of the improvidently gr anted protective order. Additionally, this case is being brought after Appellant qualified for pro bono appellate representation by a volunteer attorney through the Third Court of Appeals Pro Bono Program. For all of these reasons , Appellant requests oral argument.Active 20386168.3 xii STATEMENT OF THE CASE
Nature of the Case : The State of Texas for th e Protection of Hal Ketchum filed an application for a family violence protective order, alleging that Appe llant, with no familial or dating relationship to Hal, ha d been subject to a prior restraining order, stalked Hal over a 16-year period, and committed violence against him. Trial Court : County Court at Law #2, Co mal County, Texas, Judge Charles A. Stephens Presiding in Cause No. C2014- 1690C Course of Proceedings and Trial Court’s Disposition : The State’s application for a family violence protective order resulted in a Temporary Ex Parte Protective Order, a Stalking Protectiv e Order, and an Amended Stalking Protective Order. The trial court denied Appellant’s motion for a new trial. Appellate Jurisdiction: The Court has jurisdiction. Appellant timely filed a notice of appeal, ICR24, after the trial court signed the Stalking Protective Order, ICR18-21, and Amended Stalking Protective Order 3SCR7-9. Appeal was perfected under Tex. R. App. P. 26.1.Active 20386168.3 xiii ISSUES PRESENTED Rendition Points
1. Is the evidence presented at the protec tive order hearing legally and factually sufficient to support the trial court’s entry of the lifetime Amended Stalking Protective Order?

a. Was there legally and factually suffic ient evidence that applicant was the victim of the criminal offense of stalking perpetrated by Appellant? b. Was there legally and factually suffic ient evidence for the trial court’s finding that the issued protective orde rs were necessary and appropriate for the protection of applicant and his family and household, or did the trial court abuse its discretion in making that finding?
2. Does the statutory scheme, permitting a civil lifetime protective order under Tex. Crim. Proc. Code §7A.03 when th e court finds “there are reasonable grounds to believe” the criminal offens e of stalking under Tex. Pen. Code § 42.07 has occurred, unconstitutionall y infringe upon Suzanna’s First Amendment rights?
Remand Points
1. Did the trial court abuse its discreti on in conducting the due process hearing before entering this lifetime Am ended Stalking Protective Order?Active 20386168.3 xiv 2. Did the State secure this protective order after knowingly or unknowingly presenting false testimony in violation of Appellant’s due process?
Modification Points
1. Did the trial court err in crafting th e provisions outlined in the Amended Stalking Protective Order, which re sults in significant restrictions on Appellant’s liberties and states that the order “shall continue in full force and effect until the lifetime of either party?”Active 20386168.3 1 INTRODUCTION Based on what local musician and celeb rity, Hal Ketchum, described as his “paranoid” fears, perceived “psychological warfare,” and “instinc t” that something was funny about Appellant Suzanna Eckchum, the State of Texas obtained a civil “stalking” protective order on his behalf. Hal’s hyperb ole resulted in an order prohibiting Suzanna—who is also a local musician and music journalist—from going within over half-a-mile of anywhere Hal could be found. More harmful to Suzanna, the ordered restrictions prev ent Suzanna from frequenting music venues critical to her profession and limits her access to other locations near and around the small towns where the parties live, Fi scher, Texas and Wi mberley, Texas. More harmful yet, the order imposes these restrictions on Suzanna for the rest of her life. This civil protective order was requested as a family violence protective order under the Texas Family Code, but heard and ente red under a recently-enacted criminal statute, Tex. Crim. Proc. Code §7 A, which permits a lifetime protective order if the applicant is the victim of stalking as that criminal offense is defined in Tex. Pen. Code § 42. 072. The trial court erred in gr anting this protective order for three main reasons. First this order sh ould be vacated because the evidence is legally and factually insufficient to suppo rt the trial court’s findings that (1) Hal was the victim of the criminal offense of stalking and (2) the conditions specifiedActive 20386168.3 2 in its order were necessary and appropriate for the protection of Hal. Second, the trial court’s application of these crimin al statutes unconstitutionally infringes on Suzanna’s right to free speech. Third and finally, the trial court made multiple eviden tiary errors during the protective order hearing, some of which resulted in violations of Suzanna’s due process rights. In a civil hearing where Suzanna—who wa s accused of a criminal offense—has so few of the constitutiona l protections available to criminal defendants accused under these same crimin al statutes, the trial court erred in granting this protective order based on tes timony shown at trial to be false. The trial court also erroneously granted relie f not requested in the application for protective order. Finally, the trial court improperly excluded evidence and argument on Suzanna’s behalf, but relied on evidence not presented at trial. In sum, the trial court erred in concluding that its order was necessary for Hal’s protection. Compounded, these errors resulted in a lifetime civ il protective order with significant restrictions on Suzanna’s libertythat are wholly incongruous with the scant evidence of criminal stalking muster ed by the State. For these reasons, this Court should vacate this protective order, or in the alternative, remand for a new hearing and modify the restrictions of this protective order pending re-hearing.Active 20386168.3 3 STATEMENT OF FACTS For decades, Suzanna has worked in the music industry as a journalist, photojournalist, singer-songw riter, and radio host cove ring the thriving Central Texas singer-songwriter scene. 2RR79, 82-86; 114-115; Exs. 3-5. Despite a hip implant that limits her mobility, she conti nues to pursue her music-centric career, which has taken her to in fluential music capitals from Nashville, Tennessee to cities in the Texas Hill Country, where she performs at Wimberley’s Cypress Creek Cafe. 2RR87, 114- 115. And for 30 years, Hal Ketchum has been a musician and describes himself as “very successful.” 2RR11-12.
I. The parties initially met in eith er 1994 or 1995, de pending on who testified and when. Suzanna first met Hal in August 1994 when she was working as a staff writer for a newspaper in Colorado and wa s assigned to interview Hal, who was performing at a county fair. 2RR67-68; Ex. 1 1 . Over the course of the next few years, while pursuing her own music, Suzanna interviewed and photographed many musicians across the country, includi ng Hal, for newspapers. 2RR68-70, 78; Exs. 2, 6. But Hal doesn’t remember it that way. Instead, he characterizes Suzanna as a fan he had very little recollection of, but to whom he gave an autograph at a

1 At the time Suzanna wrote the arti cles, her last name was Eckert. See Exs.1-2. After Suzanna’s divorce and her ex-husband’s marriage to a woman who shared Suzanna’s name, she chose the professional name that currently uses. 2RR77-78.Active 20386168.3 4 “meet-and-greet. See 2RR24, 25-27. There, Suzanna ’s presence at the back of a line sent a “little red flag up” in Hal’s mind. Id . He claims that one meet-andgreet (which Hal alleged occurred in 1995 perhaps—a year after Suzanna’s interview of Hal was published in 1994) was the only time he ever met her. 2RR24, 27. And since then, Hal claims that Suzanna has stalked and followed him across the country for 16 years in cont ravention of a “restraining order” 2 he claimed to have obtained against her in Nashville in 1997 after police stopped her when he reported her to the police for going through his mailbox. ICR8, 2RR13, 24, 27-28, 30, 101.
II. The parties both moved to the Texas Hill Country in 2013. Contrary to Hal’s claims, Suzanna ha d not seen Hal from 1997 until after she moved to Wimberley from New Braunfel s, Texas in 2014. 2RR82-83, 112. By January 2013 Suzanna was already liv ing in Wimberley and later began working on a music-centric radio show. 2RR 106-07; 112. Leaving a residence she shared with a friend, Suzanna moved al one to an RV on Fischer Store Road in August 2013. 2RR82-86, 112; Exs. 3-5. This road exte nds about seven miles west of Suzanna’s residence ending at th e Fischer Store Mu seum and Fischer Haus/Cantina in Fischer, Texas. 2RR15, 38, 62-63, 89-90. The Fischer Haus/Cantina is a music venue located near the museum, but is a separate property

2 As discussed in Section IV.A, infra , Hal admitted this “restraining order” was merely a police report. It was not offered into evidence.Active 20386168.3 5 with owners different from the owners of the museum. 2RR62-63. There, Hal has lived on a portion of the property with the same physical address as the Cantina since October 2013—two months after Suzanna had alread y moved to Fischer Store Road. 2RR15, 62-63, 89; ICR8. Fischer Store Road is the major thor oughfare between the main square of Wimberley and Fischer, Texas. See 2RR36-37. As such, it is the only way for Suzanna to go from her rural residence on the road, to conduct work or any business or errands in Wimberley. Id. It’s also Hal’s preferred route into Wimberley. See 2RR36-37. Since Suzanna’s RV is halfway between Hal’s residence and Wimberley, Ha l frequently passes by Suza nna’s residence going to and from town. 2RR36-37.
III. The parties began running into each other at various locations in the Texas Hill Country in 2014. With the parties living on the same roadand working in the same industry in the same small town, it is no surprise that their paths eventually crossed again. But one encounter on January 12, 2014 at a music venue stood out in Suzanna’s memory. On that day, Hal accosted her, cursing at he r with clinched fists and threatening to kill her. 2RR90-94. While on her phone and walking away from Gruene Hall, a local music venue, Suzanna heard Hal yell from behind her to “get off her f---ing phone.” Id. at 92. Standing there with his wife and 17-year-old daughter, Hal threatened to kill Suzanna, ca lling her a “f---ing cunt” and a “bitch.”Active 20386168.3 6 Id. Eventually, Hal’s wife tried to restra in Hal as he blocked Suzanna’s path. Id. at 92-93. And Hal’s 17-year-old daughter begged Suzanna not to call the police before running into a nearby store f earing her dad would go to jail. Id. at 90. When Suzanna was able to pa ss, she notified an officer at the venue of the incident, and he later escorted her to her car. Id. at 93. Hal did not confirm or deny this incident. Id. at 47. Instead, he and his wife a llege a later, unc orroborated confr ontation at that same venue on January 23, 2014. ICR8. There on that da te, Hal claims Suzanna threatened his life by saying “mess with me and you will be sorry.” Id. ; 2RR17, 55. And Hal says that one statement— which was conditional because he doesn’t mess with her, was the only time Suzanna threatened him. 2RR43-44-49-61. Hal’s other allegations are that Suzanna “intimidates” him and his family, without ever having uttered any words, just by her presence and photography. Id.
IV. The evidence shows that the parties di sagree as to when and where they encountered each other. Hal alleged a series of incidents begi nning in January 2014 that he felt constituted stalking that boiled down to “h e-said-she-said.” Except, it was what Hal and his sole witness, his wife of 11-months, said on one hand, compared to what Suzanna and a number of neutral w itnesses and documents (or Hal’s lack thereof) proved on the other hand:Active 20386168.3 7 Hal says 3 : The record supports: Instinct told him to be wary of Suzanna from the very first time he laid eyes on her in 1995, standing alone 4 in the back of a meet-and-greet line. ICR8; 2RR12, 25-27 Hal and Suzanna met a year earlier when she interviewed him for newspaper articles which were published. 2RR67-70; Exs. 1-2. On February 14, 1 997, he obtained a restraining order against Suzanna inNashville based on the Tennessee antistalking statute implemented on his behalf. 2RR15, 24, 30; ICR8. The order permitted him to show a picture of Suzanna to the police and tell authorities not to let her into his shows. 2RR14. Hal never obtained a restraining order against Suzanna. 2RR28. While the Tennessee stalking criminal offense was implemented in1992, Tenn. Code Ann. § 39-17-315, there was no statute permitting protective orders for stalking until 2005—eight years after Hal claimed to have obtained an order. Tenn. Code Ann. § 36-3-605; 2005 Tennessee Laws Pub. Ch. 381 (S.B. 645), attached as Appendix 1. Prior to the Amended Order, Suzanna had never been served with a restraining order. 2RR89. Hal saw Suzanna only once in 1994. 2RR31. Suzanna has stalked him for 16 years. 2RR14, 19 The parties had no contact and did not see each other between 1997 and 2014. See 2RR27, 29-30, 43-44, 83. Suzanna has followed Hal to every city where he moved from Nashville toAustin, and finally to the Wimberleyarea. ICR8; 2RR15. Hal moved to Tenne ssee in 1991, and Suzanna moved in 1995. 2RR79. He does not remember when he moved from Tennessee, 2RR40, or to Austin, 2RR41. But he moved to the Wimberley-area in October 2013. ICR8. Suzanna moved to Wimberley before him—in January 2013. 2RR112-113.

3 For purposes of simplifying this summary, only “Hal” refers to testimony provided by both Hal and his sole witness, his wife, Andrea.

4 In his affidavit, Hall alleged that Suzanna was in the meet-and-greet line for an autograph “and that was it.” ICR8. But at trial, Hal appended a story that Suzanna was in line for an autograph and picture with her young son, w ho, in later years, Suzanna sentto Hal’s shows as a “little messenger” to bother Hal. 2RR12, 50-51.Active 20386168.3 8 Hal says: The record supports: At Gruene Hall on January 12, 2014, Suzanna “showed up where he was.” ICR8. Nothing else occurred on that date. See id.; 2RR46-47. At that location, a shopkeeper witnessed Hal lunging at Suzanna, cussing, hollering, and screaming at her, while Suzanna calmly walked away from him and Hal’s wife tried to restrain him back. (2RR at 71-75). This could only have ha ppened on January 12, 2014. See 2RR87-89, 95. At Gruene Hall on January 23, 2014, Suzanna jumped out of the bushes, 2RR16, or from behind cars, 2RR54-55, (depending on whether Hal or his wife was testifying) at Hal’s family. She then allegedly threatened Hal’s life by telling Hal that if he messed with her, he would be sorry, and formed a pistol with her fingers. 2RR16-17. Suzanna was in the hospital on this date. In fact, from January 15, 2014 to May 2014, Suzanna was in the hospital, a rehabilitation facility, or homebound, recovering from a hip implant—which would preclude her from “jumping” anywhere. 2RR87-89; 113-114. She could not drive or walk during that period. Id. On 6 occasions from January to May 2014, Suzanna “showed up” where he was. ICR8; 2RR18. Suzanna was hospitalized for or rehabilitating from a hip implant from January 15 to May 2014. 2RR87-89, 95. Around April 2014 at Gruene Hall, Hal’s wife locked Hal’s 17-year-old daughter in a truck to keep Suzanna away from the daughter. Then, Suzanna appeared outside the truck. 2RR58-59. Suzanna was hospitalized for or rehabilitating from a hip implant from January 15 to May 2014. 2RR87-89, 95.

Suzanna follows him on Fischer Store Road to and from Wimberley’s commercial center. Suzanna and Hal live on the same road—the road both use to travel from their residences to Wimberley. 2RR36- 37, 65-66. At a music event, “Wag Fest,” Suzanna “bothered” Hal simply by attending, wearing large headphones and talking into a voice recorder “mimicking” him during his performance. ICR8; 2RR45- 46. Hal was “intimidated” by this behavior. See id. Suzanna attended Wa g Fest to conduct interviews for the Wimberley Valley Radio. 2RR45-46, 90, 97. She wore headphones and spoke into a voice recorder to record sound bites for her radio show. Id.Active 20386168.3 9 In addition to those contradictions, the evidence also s howed that Hal’s affidavit omitted or exaggerated key facts. For example, Hal’s affidavit stated that Suzanna followed him to Wimberley and lived “blocks away” from his home which gave the illusion that Suzanna chose to live very near to where he was already living. See ICR8. Besides the fact thatSuzanna moved to Wimberley months before Hal actually. 2RR112-113; Ex. 5, Hal stated at the hearing that her residence was “three miles” away, not “blo cks away.” ICR8; 2RR15. In reality, the distance from Hal’s residence to Suzanna’s residence is seven miles. 2RR89. He also claims that when Suzanna made a shooting motion while instructing him not to mess with her, his daughter ran away scared, omitting the reason why his daughter was scared. ICR 8. This omission gave the illusion that his daughter “was so intimidated and frightened by this woman,” Suzanna. 2RR17. But what his 17-year-old daughter 5 was afraid of was Hal going to jail so much that she did not want to leave the scene with him. 2RR73, 75. He also claims that in November 2014, Suzanna sat at the Fisc her Store near his residence and took photos, without stating the subject of th e photos. ICR8; 2RR18. The omission gives the illusion that Suzanna went to Hal’s home to take photos of him, his family, or his residence. But Hal’s wi fe acknowledged that Fischer Store is a

5 This daughter, Rose Ketchum, was present at trial, sworn in, and sequestered, but never testified. 2RR10, 66. Thus, th e only testimony of why the daughter was afraid was admitted with no objection and provided by a neutral, third-pa rty witness—the shopkeeper who managed the shop in which Hal’s daughter ra n during the incident . 2RR73-75.Active 20386168.3 10 separate property from the property on which the family lives. 2RR62-63. Suzanna took pictures of the venue itsel f while interviewing the owner of the venue—not Hal or his home. 2RR89-90. Finally, he alleged that Suzanna took pictures of his grandkids and family, but failed to note that any such photos were taken of the audience at public events, and the children were a part of the audience.
2RR63-65. In addition to those key omissions, Ha l also frequently discredited his own testimony and affidavit. For instan ce, Hal testified that Suzanna had “continuously” harassed him from 1994 to 199 7. 2RR29. But moments later, Hal concedes that he had not seen Suza nna from 1994 to 1997, and thus “really wouldn’t know” if Suzanna was stalking him then. Id. Also, Hal stated in his affidavit that he was at Gruene Hall on January 23, 2014 (the date he alleges Suzanna threatened his life) because he was performing. ICR8. While at the hearing, he testified that he was there on th at date just to have “a couple of beers,” but was not intoxicated. 2RR16, 50. As another example, Ha l described Suzanna as a fan he met once and whose name he didn’t even know at the time, 2RR25, and had no recollection of meeting at a newspaper interview. See 2RR27. Nor did he know her name when he somehow obtained a “restraining order” against her three years later. 2RR25. But he later te stifies that he did know her name and purportedly knew her young son. 2RR50-51. Finally, Hal claimed that sinceActive 20386168.3 11 January 2014, he calendare d each date Suzanna followed him because a police officer to whom he reported the stalking advised him to track the incidents. 2RR47; ICR8. Yet, his affidavit stated th at he did not report a ny “stalking” to any authorities until December 14, 2014—nearly 11 months after he claims a police officer told him to keep a calendar, nearly a year after he claims Suzanna threatened to kill him, and two days before he sought this protective order. ICR8. Additionally, Hal alleged a number of uncorroborated encounters only supported by Hal’s own—oftentimes forgetful—testimony. 6 Hal’s allegations of “Su zanna following [him a nd his family] around and tak[ing] pictures all the time” conclude d with his description of an event on December 14, 2014 where he claims Suzanna attended his event at the VFW “in an intimating [sic] nature.” ICR8; 2RR 44. At trial, he admitted that he was not the sole performer at the event, and the even t was actually that of a local performer— Eppy the Clown—as a benefit concert. 2RR45-46; 98-99. While Hal alleged

6 For example, at trial, Hal recounted incide nts where Suzanna allege dly sent a young boy who Hal claims was her son to try to get backstage access to Ha l’s shows. 2RR50-51. Despite knowing no dates or locations or how many times th is occurred, he insists these things happened. Id . at 52-53. According to Hal, the next time he claims he saw Ms. Eckchum was when she appeared on his lawn in 1997 at his home in Nashville, Tennessee. 2RR12-13. From the moment he met her, he claims she began sh owing up at his children’ s school, following him around the grocery store, and going through his mailbox in 1997. 2RR13. He saw Suzanna in Wimberley on December 7, 2014, and claims Suzanna took pictures of his grandkids in June and of his family in September. ICR8. He asse rts that she followed hi s children at a school fundraiser and took pictures of his grandchi ldren. 2RR14. On December 7, 2014, he saw Suzanna in Wimberley following hi s daughter and her friends. 2 RR18. He also saw her at the Ace Hardware store in town, and presumed Suzanna followed him there. 2RR58, 65.Active 20386168.3 12 Suzanna was there to “intimate” [sic] him, ICR8, the record shows that Suzanna attended the event to invite other musician s onto her radio show and also to take photographs for The Wimberley View , a local newspaper in which her photos were published the next day. 2RR99, 106-07; Ex. 6. On the day following this “incident,” and nearly a year after he cl aims Suzanna threatened to kill him by forming a gun with her hand and telling him not to “mess” with her, Hal claims to have reported Suzanna’s behavior to th e Comal County Sherriff’s office, “but do[es] not have the ca se number.” ICR8. The State then filed an application for a family violence protective order requesting Suzanna be prohibited from “removing children from Hal’s possession” and “transferring, encumberi ng or otherwise disposing of any property owned or leased by Applicant and Respondent,” as well as requesting that “temporary support and visitation be se t,” under the Texas Family C ode. ICR4-7. The court granted that relief, and set a due process hearing before en try of a permanent order. Id. at 10-12. At that hearing and based on the thin accusations recounted above, the State of Texas convinced the trial court that Hal’s life had been threatened and he was “frightened,” scared, and afraid a bullet would enter his home. ICR8; 2RR15, 19. The trial court granted the protective order (and removed the family violence provisions) finding that (1) Hal wa s the victim of stalking and (2) the “Stalking Protective Order” was necessary and appropriate to prevent or reduce theActive 20386168.3 13 likelihood of future harm to Hal or a member of his family or household. ICR18- 20. Aware of the small size of Wimberley, the court ruled that Suzanna should (1) stay 1,000 yards (over half-a-mile) fro m Hal and specified locations in Wimberley; 7 (2) not engage in any conduct that is reasonably likely to “harass, annoy, harm, abuse, torment, or embarra ss” Hal or his family; (3) “look in the newspaper” before going to any music venue to ensure that sh e is not there three hours before or three hours after Hal is performing; and (4) essentially leave any location where she sees Hal. See 2RR117-121. The trial court expressed that it based this order on the evidence it hear d about Suzanna “showing up, including other cities and places, where [Hal] is.” 2RR121. After a hearing in which Suzanna’s motion for new trial was deni ed, the court amended the order to decrease the stay-away provisions from 1,000 yards to 1,000 feet. 3SCR7-9. Both orders “shall continue in full force and e ffect until the lifetime of either party.” ICR20; 3SCR9.

7 After a hearing on Suzanna’s motion for new trial, the trial court reduced the distances in the stay-away provisions to 1,000 feet . Appendices 2,4. As discussed in Sections III and IV.D infra, both distances significantly limit Suzanna’s abili ty to live and conduct business in Wimberley. Appendix 3 is a map used for explanation only and that is not to scale or an accurate, legal representation of the physical property. It show s an example of a location prohibited in the protective order and other locations encompassed by the 1,000-foot radius specified in the stayaway provisions.Active 20386168.3 14 SUMMARY OF ARGUMENT The trial court improvidently entered this lifetime stalking protective order. The State’s evidence showed thattwo residents of the same small town, both in the music industry, frequented the same music venues and events, and that “bothered” Hal. But none of that constit utes the offense of stalking, which based on the alleged facts, would require more than one knowing threat of bodily injury or death, along with objective and subjec tive elements of th e accuser’s fear. See Tex. Pen. Code § 42. 072. At most, Hal alleged th at Suzanna warned him not to “mess with her” and that that warning made Hal feel threatened in an incident the evidence shows could not have possibly occu rred as Hal alleged. Whether or not Hal subjectively experienced “paranoid” fear when he saw Suzanna around town, under the stalking statute’s objective prong, a reasonable person would not have feared death or bodily injury when Su zanna showed up to music venues with a camera, headphones, and a voice recorder, for example. In short, the evidence was not legally and factually sufficient to support entry of a stalking protective order— that endures for the rest of Suzanna’s lif e—under the relevant statutory framework. The Court should vacate this order for this reason alone.
Additionally, the relevant statutory framework is unconstitutional as applied to Suzanna as it pr ohibits protected speech under the First Amendment forActive 20386168.3 15 the rest of Suzanna’s life. For this reas on as well, the Court should vacate this order.
Finally, the trial court made a numbe r of errors in conducting the due process hearing required before entry of a protective order. First, in the application for a protective order and at the due pr ocess hearing, the State relied on false testimony which deprived Suzanna of due pr ocess required by law. Then, the trial court granted relief that was not requested by the State by entering a stalking protective order when the State applied fo r a family violence protective order. Further, at the due process hearing, the court excluded relevant testimony the legislature explicitly stated should be admissi ble. Finally, in ruling, the trial court erred in relying on evidence not presented. These errors resulted in a due process hearing that provided minimal fairness to Suzanna who was accused of committing a criminal offense, and as a result, is no w subject to a civil order (enforceable by jail time) that restricts her liberty for the rest of her life.
For these reasons, this Court should vacate this improvidently granted Amended Stalking Protective Order (“Amended Order”). Alterna tively, this Court should remand for a new due process heari ng and modify the restrictions of the Amended Order pending a new hearing.Active 20386168.3 16 ARGUMENT I. Assuming the State properly requested a stalking protective order, the interaction between the applicable civil and criminal statutes required the State to prove the criminal offense of stalking occurred. Despite the State alleging no family or dating relationship between the parties, it requested this stalking prot ective order under Chap ter 85 of the Texas Family Code. ICR4-7; 2 RR7. Tex. Fam. Code § 85.001 permits issuance of a protective order if family violence has occu rred and the parties are in a family or dating relationship. At tria l (and for the first time), the State requested that the court issue a stalking protective order, which is not available under the Family Code, but is available under Tex. Crim. Proc. Code §7A. 2CR9; see infra Section IV.B. This chapter of the Code of Crim inal Procedure is a recently-enacted, bare bones scheme for protective orders that relies on the Family Code to fill in administrative gaps, such as fee paym ent, notice, and time for hearings. See Tex. Crim. Proc. Code §7A; Tex. Fam. Code §71.001 et seq . It also relies on the Penal Code for descriptions of the unlawful c onduct warranting a protective order. Tex. Crim. Proc. Code §7A.01(a)(1)(2). The relevant provisions permit the State to file an application for a stalking protective order, without regard to the re lationship of the parties, on behalf of a person who is the victim of an offens e under specified Penal Code provisions, including the criminal offense of stalking. Id. at 7A.01. “At the close of a hearingActive 20386168.3 17 on an application for a protective order unde r this chapter, the court shall find whether there are reasonable grounds to be lieve that the applicant is the victim of...stalking” and issue a protective order with that finding. Id. at § 7A.03. When issuing a protective order under this chapter, the court may order the offender to take any action the court dete rmines is “necessary or appropriate to prevent or reduce the likelihoo d of future harm to the applicant or a member of the applicant’s family or household.” Id. at §7A.05(a)(1). The chapter also permits the trial court to enter a protective order with “stay-away” provisions for residences, work addresses, and school s, as well as provisions prohibiting possession of a firearm. Id. Finally, the protective order can include a provision prohibiting the accused from “engaging in c onduct directed specifically toward the applicant [or his family or household], including following the person, that is reasonably likely to harass, annoy, alarm, abuse, torment, or embarrass the person.” Id. at § 7A.05(a)(2)(C). This last permissive provision was once itself the criminal offense of stalking before it was held unconstitutional and revised multiple times to attempt cure the unconstitutional vagueness. Long v. State , 931 S.W.2d 285, 288 (Tex. Crim. App. 1996) (holding an earlier vers ion of the stalking statute making it a crime to “engage[] in conduct directed specifically toward the other person, including following that person, that is reasonably likely to harass, annoy, alarm,Active 20386168.3 18 abuse, torment, or embarrass that pers on” to be unconstitutionally vague on its face). The current revised stal king criminal o ffense provides: (a) A person commits an offense if the person, on more than
one occasion and pursuant to the same scheme or course of
conduct that is directed specifically at another person , knowingly engages in conduct that: (1) constitutes an offense under Section 42.07, 8 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

8 One can also commit the crime of stalking by en gaging in conduct that “constitutes an offense under Section 42.07,” which is the crime of harassm ent. As the State never alleged Harassment in its Family Code application for a protective order, to the extent the State still asserts that Harassment occurred, the challenges to legal and f actual sufficiency outlined in this brief apply to the criminal offense of harassment as well. This is because the only provision of the Harassment statute remotely applicable involves conduct that “threatens, in a manner reasonably likely to alarm the person receiving the threat, to inflict bodily injury on the person or to commit a felony against the person, a member o the pers on’s family or household, or the person’s property.” See Tex. Pen. Code §42.07(a)(2). The major difference in this case is that Harassment has a higher mental state of “inten t to harass, annoy, alarm, abuse, torment, or embarrass” instead of knowledge th at conduct would resu lt in fear or the litany of emotional states in the Stalking statute. See id. at § 42.07(a)(1).Active 20386168.3 19 (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 indivi dual 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 co mmitted against the other person's property, or to feel harassed, annoyed, alarmed, abused, tormented, embarra ssed, or offended ; and (3) would cause a reasonable person to:(A) fear bodily injury or death for himself or herself;(B) f ear bodily injury or death for a member of the person's family or ho usehold or for an individual with whom the person has a dating relationshi p;(C) fear that an offense will be committed against the person's property; or (D) feel harassed, annoyed, alarmed, abused, torm ented, embarrassed, or offended

. Tex. Pen. Code Ann. § 42.072 (emphasis added). In other words, to “stalk” Hal, Suzanna needed to do any conduct in which a person could possibly engage that she knew to a reasonable certainty would result in Hal believing she threatened bodily injury, death, or a property offense. See id. ; see also id. §6.03 (“A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware th at his conduct is reasonably certain toActive 20386168.3 20 cause the result.”). Additionally, that conduct shoul d have resulted in Hal’s subjective fear of the threat, or, a mere feeling of any one of the litany of lowintensity emotional states listed in the statute. See id. at §42.072 (listing harassed, annoyed, alarmed, abused, tormented, embarrassed, and offended as emotional states an accused could feel as a result of any conduct). Finally, Hal’s fear, or, his feeling of any one of the listed emot ions needed to be reasonable under an objective standard. See id. And to be entitled to a protective order for stalking, the State needed to prove that stalking occurred.
II. The evidence was legally and factuall y insufficient to show Hal was the victim of stalking. “A legal-sufficiency challenge to a protective order, like any other legalsufficiency challenge, may only be sust ained when (1) the record discloses a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to pr ove a vital fact is no more than a mere scintilla, or (4) the evidence establishes conclusively the opposite of a vital fact.” Daniels v.
Funes , 03-10-00317-CV, 2011 WL 2437692, at*6 (Tex. App.—Austin June 17, 2011, pet. denied) (citing Uniroyal Goodrich Tire Co. v. Martinez , 977 S.W.2d 328, 334 (Tex. 1998). The Court must cons ider evidence favorable to the finding only if a reasonable fact-finder could, a nd disregard evidence contrary to the finding unless a reasonable fact-finder could not. City of Keller v. Wilson , 168Active 20386168.3 21 S.W.3d 802, 827 (Tex. 2005). “The ultimate test for legal sufficiency is whether the evidence at trial would enable reasona ble and fair-minded people to make the finding under review.” Godfrey v. Godfrey , 03-07-00220-CV, 2008 WL 3166328, at *1 (Tex. App.—Austin A ug. 8, 2008, no pet.). In contrast, reviewing a finding for f actual sufficiency requires the Court to weigh all of the evidence in the record a nd set aside the challenged finding if it is so contrary to the overwhelming weight a nd preponderance of the evidence that it is clearly wrong and manifestly unjust. Daniels , 2011 WL 2437692, at *6 (citing
Ortiz v. Jones , 917 S.W.2d 770, 772 (Tex. 1996)). This record establishes that Hal was not the victim of stalking because no reasonable and fair-minded person would fi nd that Suzanna knew that her conduct would cause Hal to fear death or bodilyinjury. Nor would any reasonable person conclude that Hal was threatened by th e only purported evidence of threatening conduct the State offered. Finally, even if there was a threat, there is a complete absence of evidence of the vital fact that threatening conduct occurred on more than one occasion and pursuant to a scheme or course of conduct. Thus, the trial court’s finding that stalking occurred was contrary to the great weight of the evidence in the record, and this stalking protective order should be vacated.Active 20386168.3 22 A. There is insufficient evidence to conclude that Suzanna knew her alleged conduct would result in Hal’s fear for his life. Suzanna had no way to know th at conducting her business in Wimberley, attending music venues, photographing and interviewing for newspapers and magazines, and making recordings for ra dio would result in Hal’s fear of bodily injury or deat h. The criminal offense of stalking requires that the alleged stalker know the ci rcumstances of her conduct as well as that her conduct would result in the alleged victim regarding the conduct as threatening death or bodily injury. See Tex. Pen. Code § 47.072 (defining offense as “knowingly engag[ing] in conduct th at... [she] knows or reasonably should know the other person will regard as threatening”). A person has the requisite mental state when he “acts knowingly, or with knowledge, with respect to the nature of his conducts...[or] knowingly, or with knowledge, with resp ect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result. Id. at § 6.03(b).
“Knowledge...depends on what inform ation the defendant possesses.” Sanders v. State , PD-0849-11, 2012 WL 1142360, at *7 (Tex. Crim. App. Apr. 4, 2012). Cases applying the stalking criminal statute have held that the knowledge element was met where the accused was warned by friends and law enforcement about his conduct. See, e.g., McGowan v. State , 375 S.W.3d 585, 591 (Tex.Active 20386168.3 23 App.—Houston [14th Dist.] 2012, pet. ref d) (pointing to defendant’s decision to ignore warnings from stepbrother and la w enforcement officer s as evidence of knowledge that stalking victim would regard his conduct as threatening bodily injury or death); Allen v. State , 218 S.W.3d 905, 909 (Tex . App.—Beaumont 2007, no pet.) (holding that ju ry could rationally concl ude defendant's continued behaviors after a police warning to stop revealed a subjective awareness that he was causing the complainant fear); Teague v. State , 06-14-00053-CR, 2015 WL 2236642, at *12 (Tex. App.—Texarkana May 13, 2015, no. pet. h. ) (holding that evidence that the complainant told the accused and the poli ce, who in turn told the accused, that she was afraid of hi m supported the knowledge element of the stalking offense).
But this record is wholly devoid of evidence of what information Suzanna possessed. And the record does not show that Suzanna knew Hal or a more reasonable person would regard her conduct as threatening death or bodily injury. At most, Suzanna understood from others in her industry that Hal told others he had “ill feelings ” toward her. 2RR98, 102. Hal never communicated to Suzanna that he felt threatened by her. See 2RR102. At some point, Suzanna learned that Hal’s publishing company, r un by Hal’s then-wife, accused Suzanna of stalking after Suzanna pitched a p hotobook to his management company. 2RR30, 81-82. That fact was confirme d to Suzanna when the police stopped herActive 20386168.3 24 traveling by foot in her neighborhood and showed her a copy the contents of her proposed book which she had not given the police. See 2RR82-83, 14, 30. No witness testified that Suzanna had any knowledge that Hal felt threatened when he saw her at music venues.
Further, there was no indication fro m Suzanna’s prior encounters with Hal that she knew Hal thought she would physi cally harm him. This is especially so considering that from when the parties met in 1994 to present, Suzanna has never physically harmed Hal or his family. See Franklin v. Benton-Elam , 06-13-00126-CV, 2014 WL 1722 165, at *10 (Tex. App.—Texarkana Apr. 30, 2014, no pet.) (denying a stalking protective order because the respondent did not know and should not have known that the accuser would regard her conduct as threatening “especially since no physical ha rm had come to [the accuser] over the years”). And over the course of the 16 years Hal alleges Suzanna stalked him, Hal admits that she never made any threats ag ainst him other than the one he alleges occurred at Gruene Hall on a date Suzanna was incapacitate d. 2RR43. And even that incident, where Hal alleges Suzanna th reatened to kill him, would indicate to Suzanna and a reasonable person that Hal was not in fear as he pursued Suzanna aggressively while hurling insults at her. See 2RR16-17, 71-74.Active 20386168.3 25 In short, nothing Suzanna could have said or done indicated to a reasonable person that she knew Hal would r easonably experience fear of a threat from her conduct. Thus, the State’s evid ence of stalking was neither legally or factually sufficient to support the entry of this protective order.

B. There is insufficient evidence tha t Hal regarded Su zanna’s alleged warning to him—“[M]ess with me and you will be sorry”—as threatening bodily injury or death. There is no legally or factually suffic ient evidence of Suzanna threatening Hal. Hal points to one c onditional statement he allege s Suzanna uttered as the source of his fear of a “dri ve-by” because his “life has been threatened” and he was “scared for [his] safety and the safety of [his] family.” ICR8; 2RR19-20. According to Hal, Suzanna said to him wh ile pointing her finger, allegedly in the form of a gun: “[M]ess with me and you will be sorry.” See I CR 8; 2RR17. The only appellate case interpreting the stalking statute in the context of the lifetime protective order statute denied the application for a protective order due to a lack of credible evidence of stalking. Franklin , 2014 WL 1722165, at *10. There, for over three years, the applicant and respondent frequently encountered each other in the small town in which theyboth resided, mostly as a result of both being romantically involved with the same man. Id. at *1. These public encounters were not cordial and frequently involved name -calling, with the final encounter order resulting in actual physical violence, leading to the application forActive 20386168.3 26 a protective order. Id. During that encounter, video evidence showed the applicant engaged verbally with respondent while applicant exited a Dollar General store as the respondent entered. Id. at *3. The applicant change d course and went back to enter the store and further engaged the respondent. See id. While the applicant claimed that the respondent was the aggre ssor in a physical altercation and thus made a credible threat, neutral third-party witness testimony and video evidence showed the opposite. Id. It was the applicant, who a dvanced toward the alleged aggressor before physical violence ensu ed, while claiming to be in fear. Id. at *3. The trial court found, and the appellate c ourt affirmed, that such conduct could not constitute a threat, because no reasona ble person would conclude that the applicant—who walked toward and not aw ay from the respondent during a verbal altercation—was in fear. See id. Assuming Suzanna made the alleged warning to Hal during an incident at Gruene Hall, Hal could no t have regarded the cond itional statement as life threatening. Likewise, no reasonabl e person could conclude that Hal—who lunged and cursed at Suzanna—feared death or bodily injury. During the incident Hal alleges, Suzanna exite d Gruene Hall and Hal soon followed. 2RR16. She appeared behind him, and Hal turned to te ll her to leave him and his family alone. Id. Her response was to tell him to leav e her alone or he would be sorry. See id.Active 20386168.3 27 Then he “went off on [Suzanna]” before ultimately leaving with his family. Id. at 17. These self-serving statements are in di rect contradiction to a neutral (and unwilling) witness who saw th e altercation and spoke with Hal’s “frightened” daughter during the encounter. 2RR71-74. This witness came to trial on her lunch break from a store near Gruene Hall where she was working the night she witnessed Hal “hollering and cussing,” “s aying ugly things,” and “lunging” at Suzanna while Hal’s wife tried to pull him back. 2RR71-72. All the while, Suzanna was calmly walking away with he r back to Hal, while Hal continued following and lunging towards Suzanna. 2 RR72. This testimony establishes that Hal could not have feared Suzanna’s alle ged threat because he pursued Suzanna, and not the other way around. Further, at most, this “conditional” statement Hal alleges would be a warning of self-defense by Suzanna unde r the circumstances described by the neutral witness. The conditional phrase confirms that Suzanna promises to do nothing if Hal does not mess with her. And Hal agrees that it was conditional and claims that he does not “mess” with Suza nna. 2RR48-49. Therefore, even if one believes that Suzanna made this statemen t and the accompanying gesture to Hal (although the evidence showed she could not possibly have been present on the day Hal claims she made the statement) there is no legally or f actually sufficientActive 20386168.3 28 evidence that Hal regarded the conduct as threatening. Further, even if this conduct was threatening, it at most constitu tes one threat, when the stalking statute requires threatening conduct on more than one occasion. Beca use Hal alleged and proved no threatening conduc t by Suzanna, the Court shoul d vacate this protective order.
C. There is insufficient evidence that any reasonable person would view Suzanna’s presence, especi ally with camera and recording device, as a “scheme” of threatening conduct directed “specifically” towards Hal. Other than the non-threat discussed above , Hal alleged a series of “stalking” incidents where Hal saw Suzanna at pub lic events and public places taking pictures, making recordings, or conducti ng her business. No reasonable person would view that conduct as a scheme or c ourse of conduct directed specifically at Hal, knowing that the parties work in the same industry and live in the same small town where there was only one grocery st ore and one hardware store, facts of which the trial court was aware. See 2RR120. To the extent the trial court construed these chance encounters as cr edible evidence of threatening conduct directed specifically at Hal, the trial court erred. The stalking offense requires that the threatening conduct be “pursuant to the same scheme or course of conduct that is direct ed specifically at another person.” Tex. Pen. Code §42.072. In Franklin , the appellate court upheld the denial of a stalking protective order be cause there was no credible evidence ofActive 20386168.3 29 purposeful conduct directed at the complainant. See 2014 WL 1722165, at *9. There the two parties lived in a small town , and “the two happened to run into each other at various locations within their sh ared community over the course of three and one-half years.” Id. The trial court “characterize d the meetings established by credible evidence as chance encounters rather than conduct occurring pursuant to the same scheme or course of conduct.” Id. Likewise, the record disproves that Suzanna’s presence at locations in Wimberley was directed specifically toward Hal or his family, and instead was the result of the two parties being acquainted in the same industry and living in the same small town. This is so despite Hal’s hyperbolic efforts to suggest that Suzanna “followed” him and “showed up” athis shows. ICR8. For example, Hal claims Suzanna attended his event at the VFW “in an in timating [sic] nature.” ICR8; 2RR44. The characterization of the event as his own suggested that Hal was that “main event,” and if anyone attended, it was to see him. But at trial, he admitted that he was not the sole performer at the event, and the event was actually that of a local performer—Eppy the Clown— as a benefit concert. 2RR45-46; 98- 99. While Hal alleged Suzanna was there to “intimate” [sic] him, ICR8, the record shows that Suzanna attended the event, al ong with her radio producer, to invite other musicians onto her radio show and also to take photographs for The Wimberley View , a local newspaper in which he r photos were published the nextActive 20386168.3 30 day. 2RR99, 106-07; Ex. 6. This produ cer, who is also the president and acting general manager of the Wi mberley Valley Radio, attende d the event with Suzanna and testified that it was reasonable for Su zanna to be attending events to invite guests to her show. 2RR108. To interpre t that behavior as stalking was what the witness found alarming. 2RR108-09. Nor was Suzanna at Gruene Hall to follow or bother Hal. Both parties agree that they saw each other at Gruene Ha ll in January 2014, though they dispute the date. Id. ; 2RR46-47, 87-88. In his affidavit, Hal explained his presence at that venue by stating that he ha d a concert to perform ther e on January 23rd. ICR8. Such an explanation suggests that if Suzanna was also there on that date (which she denies), she was there because she knew Hal would be there and to attend Hal’s concert. See id. But at the hearing, Hal recalle d that in fact, he was not at Gruene Hall to perform and di d not have a concert that ni ght. 2RR16. Instead, he was there to have a couple of beers (but maintains he was not intoxicated) after having celebrated a friend’s birthday at a n earby restaurant. 2RR16, 50. This latter version of events suggests that if Hal and Suzanna were both at Gruene Hall on the date Hal alleges, Suzanna had no wa y to expect Hal to be there as well. Thus, the “life-threatening” incident Ha l alleged on January 23 rd was a result of two people in the same industry in the same small town being atthe same place atActive 20386168.3 31 the same time, and not a result of Suza nna “showing up” at places where Hal performed. As another example of Suzanna’s cond uct not being “specifically directed” at Hal or anyone else, the record shows that Suzanna attended an event called “Wag Fest” for reasons wholly unrelated to Hal. Suzanna does not deny being at the event or seeing Hal there, but she doe s deny that her reason for being there was Hal. 2RR90, 97. She attended with headphones and voice recorder in hand to make recordings and to interview ot her musicians for her radio show. Id. Yet, Hal claimed that she attended the event in an “intimidating” nature so much so that audience members around her began to l eave “because they felt so strangely intimidated by this behavior.” 2RR44-45. He also concl uded that by sitting in the front row wearing her headphones and sp eaking into her voice recorder and laughing at a joke he made on stage (to which, he himself was laughing), she was “mimicking” him. 2RR44-45. Along with knowing the reason audience members arose from their seats, Hal also purported to know what Suzanna could hear while wearing her headphones, thou gh he was wearing none. Such thin accusations are not credible evidence that Suzanna directed a scheme or course of conduct specifically at Hal. . he feared death or bodily injury. At most, Hal alleged that Suzanna’s “pre sence” and her “taking pictures” bothered him—not that she directed that conduct at him to threaten him. There is noActive 20386168.3 32 evidence that Suzanna directed her conduct specifically at Hal or his family to support a claim of stalking. Stalking did not occur, and the State did not prove it. Suzanna never threatened Hal or his fami ly. 2RR99-100. Sh e never made any gun gestures with her hand. Id. She has specifically directed no conduct at Hal. Id. She is not stalking Hal or his family. Id. For these reasons, this Court should vacate the Amended Stalking Protective Order which is not supported by legally or factually sufficient evidence.
III. As applied to Suzanna, the statutory scheme at issue unconstitutionally criminalizes protected speech. Additionally, the provisions of the stal king and protective order statutes are unconstitutional as applied to Suzanna to the extent they permit the trial court to enter a stalking protective order prohi biting Suzanna “fro m taking photos or images of applicant, applicant’s childre n, spouse, grandchildren, or anyone in applicant’s household.” 3SCR8. Such provisions subject Suzanna to criminal liability under Tex. Pen. Code §25.07 9 and jail time, for example, should an audience member captured in one of her published photographs turn out to be a member of Hal’s family or household. See 3SCR9. Moreover, Suzanna will be subject to such restrictions for the remainder of her or Hal’s life.

9 Tex. Pen. Code §25.07 makes it a criminal offens e to violate specified provisions of a protective order.Active 20386168.3 33 The trial court’s interpretation of th e stalking statute to make unlawful and prohibit Suzanna from taking photographs at public events and public places improperly criminalizes protected speech. That the Constitution prohibits any law abridging freedom of speech is not debata ble. U.S. Const. amend. I (“Congress shall make no law ... abridging the freedom of speech.”). This guarantee of free speech, which was made applicable to the various states by the Due Process Clause of the Fourteenth Amendment, Gitlow v. New York , 268 U.S. 652, 666, 45 S.Ct. 625, 69 L.Ed. 1138 (1925), gene rally protects the free communication and receipt of ideas, opinions, and information. Red Lion Broadcasting Co. v. F.C.C. , 395 U.S. 367, 390 (1969).
Although the guarantee of free speech is not absolute, the State may only proscribe communicative conduct (i.e., the communication of ideas, opinions, and information) that invades the substan tial privacy interests of another in an essentially intole rable manner. Cohen v. California , 403 U.S. 15, 21 (1971). For example, threatening speech is not a prot ected expression, but a criminal statute that seeks to punish threats must “clear ly distinguish between actionable or true threat and protected speech.” State v. Hanson , 793 S.W.2d 270, 272 (Tex. App.— Waco 1990, no writ). “[W]here First Am endment freedoms are implicated, the law must be sufficiently definite to avoid chilling protected expression.” Long , 931 S.W.2d at 287.Active 20386168.3 34 “A statute is overbroad if it sweeps within its coverage speech or other conduct protected by the First Amendment.” Garcia v. State , 212 S.W.3d 877, 887 (Tex. App.—Austin 2006, no pet.). “[A] cl aim that a statute is unconstitutional ‘as applied’ is a claim that the statute opera tes unconstitutionally w ith respect to the claimant because of his particular circumstances.” Scott v. State , 322 S.W.3d 662, 677 (Tex. Crim. App. 2010), ab rogated on other grounds by Wilson v. State , 448 S.W.3d 418 (Tex. Crim. App. 2014). To the extent the trial court held that the stalking statute makes Suzanna’s photogra phing at public places unlawful, that statute is unconstitutional as applied to Suzanna. The stalking statute prohibits any conduct, including speech. Tex. Pen. C ode Ann. §§ 42.072; 1.07 (1), (10) (prohibiting any conduct and defining conduct to include speech). And photography is a form of speech, the “purpos eful creation of [which] is entitled the same First Amendment protection as the photographs and visual recordings themselves.” Ex parte Thompson , 442 S.W.3d 325, 336-37 (Tex. Crim. App. 2014) (“[P]hotographs and visual recordings are inherently expressive, so there is no need to conduct a case-specific inquiry into whether these forms of expression convey a particular ized message.”).
Photographing for news gathering is no exception to free speech protection. Connell v. Town of Hudson , 733 F. Supp. 465, 469 (D.N.H. 1990) (accumulating cases and holding that news gathering is protected by the FirstActive 20386168.3 35 Amendment so the government cannot unreas onably interfere unless to prevent access to a place from which the general pub lic is prohibited fo r essential safety purposes). And these First Amendment right s are especially applicable to Suzanna whose photographs are published in local news papers and magazines. Exs. 1, 2, 3, 4, 6; 2RR67-70, 82, 85, 95-99.
But the trial court’s protective or der makes it potentially unlawful for Suzanna to even appear at local music venues, much less ph otograph performances and events at such venues, for fear that Hal (or any member of his family) might also contemporaneously visit the venue. If she is at a location, and he shows up after her, she potentially has to stop what she is dong and leave—or so a person of ordinary intelligence would think from read ing the order. Even the trial court could not provide guidance as to what th e “boundaries” of this order might be. See 2RR119-121 (advising Suzanna to leave anywhe re she is if she sees Hal or anyone in his family). This is exactly the probl em warned against with overbroad statutes that “inevitably lead citizens to steer far wider of the unlawful zone than if the boundaries of the forbidden ar eas were clearly marked.” Long , 931 S.W.2d at 287- 88. And even if Suzanna’s warning to Hal not to “mess” with her actually occurred and was a threat, “the legislatur e may legitimately punish the threat, but it should not be permitted to hold some one’s First Amendment rights forever hostage after he makes such a threat.” Id. at 293-94. Because the trial court’sActive 20386168.3 36 interpretation of the relevant statutes prohibited Suzanna’s photography, it violated her First Amendment Rights. This Court should vacate this order.

IV. The trial court erred in a number of discretionary rulings, which compounded, led to an unfair hearin g and resulted in this restrictive order. The due process hearing was fraught with errors resu lting in a lifetime of social stigma for Suzanna , as neither this protective order nor the social stigma attached to it expires. See Finley v. Finley , 02-11-00045-CV, 2015 WL 294012, at *2 (Tex. App.—Fort Worth Jan. 22, 2015, no pet.) (notin g that “although [protective orders] may ultimately expire , the social stigma attached to them generally does not”); In re Salgado , 53 S.W.3d 752, 757-58 (Tex. App.—El Paso 2001, orig. proceeding) (noting the signifi cant collateral legal repercussions and social stigma); James v. Hubbard , 21 S.W.3d 558, 560-6 1 (Tex. App.—San Antonio 2000, no pet.) (same). As outlined below, the tria l court made a series of errors that independently require reve rsal by this court, and cumulatively exemplify the unfair proceedings Suzanna endured.

A. The trial court erred in granting a protective order based on false testimony in violation of Su zanna’s due process rights. The State presented and failed to co rrect Hal’s false testimony that he obtained a restraining order against Suza nna in Nashville, Tennessee in 1997. 2RR14, 24, 27-28. This false testimony, along with the implausible allegationsActive 20386168.3 37 Hal provided in his application and at th e hearing, was the basis of the State’s application for a protective order and ke y evidence on which the trial court relied in granting the Amended Order. But be cause the testimony was shown to be false at the due process hearing and before entry of the protective orde r, it was offered in violation of Suzanna’s right to due pro cess. This Court should vacate this Amended Order.
The “admission of false testimony c ould violate an applicant's dueprocess rights, even when the State was unaware at the time of trial that the testimony was false.” Ex Parte Chavez , 371 S.W.3d 200, 204 (Tex. Crim. App. 2012) (citing Ex Parte Chabot , 300 S.W.3d 768, 772 (Tex. Crim. App. 2009)). Further, “[a] due-process violation may arise not only through false testimony specifically elicited by the State, but also by the State's failure to correct testimony it knows to be false.” Ex parte Ghahremani , 332 S.W.3d 470, 477 (Tex. Crim. App. 2011). It is a due process violatio n just the same if the prosecutor should have recognized the misleading nature of the evidence, but did not actually know the evidence was false. Id. And while these standards ha ve been applied to false testimony the State prosecuting attorney uses to prove a criminal offense that results in a criminal conviction, such sta ndards are just as applicable here where the State used Hal’s false testimony to prov e the criminal offense of stalking which resulted in restrictions on Suzanna ’s liberties for her lifetime. See Hunt v. State exActive 20386168.3 38 rel. K.C. , 03-11-00352-CV, 2012 WL 3793283, at *4 (Tex. App.—Austin Aug. 31, 2012, no pet.) (assuming, without deciding, that the principle that a defendant’s due process rights may be violated if the State uses false testimony to obtain a conviction applies in the c ontext of protective orders).
Hal claimed repeatedly that he obt ained a prior “restraining order” against Suzanna. ICR8; 2RR14, 24, 27-28, 30, 33-34, 39. But Suzanna had never before been served with a restraining order. 2RR89. And the State offered that testimony despite many indications that the testimony was false. For example, in its Application for Protective Order, the St ate asserted that Su zanna had engaged in acts of stalking “to-wit” communicating a threat directly, through a person, or through a third-party to “ a person protected by an order ;” “going to or near the residence or place of em ployment or business of a person protected by an order ;” going to or near the school of a child protected under the order ; and “engaging in conduct directed specifically toward a person who is a person protected by an order .” ICR8. The common claim in all those allegations is that stalking, communications, and conduct was directed to “a person protected by an order.”
But Hal was not a person protected by any order, and the State had many indications that Hal’s assertions ot herwise were false. At the time of application for protective order, the State was required to attach or file a copy ofActive 20386168.3 39 the prior restraining order with the court. Tex. Fam. Code Ann. § 82.008 (“An application for a protective order that is filed after a previous ly rendered protective order has expired must include a copy of the expired protective order attached to the application.”). If such a copy was unavailable, the State was required to provide “a statement that the order is un available to the applicant and that a copy of the order will be filed with the court before the hearing on the application.” Id. The State appeared to have been aware of its lack of a “restraining order” and this statutory requirement as it included such a statement in its application. See ICR6. Yet, the State never provided the trial court or Suzanna with a copy of this purported restraining order, and instead , provided a Nashville Police Department number. 10 ICR8.
Knowing it had no prior restraining or der to offer into evidence, the State elicited testimony from Hal about Ha l’s 1997 “restraining order.” 2RR14. For example, after Hal had already twice mentioned the alleged “anti-stalking law and restraining order in Nashville that was implemented on [his] my behalf” that “prohibited [Suzanna] from coming to [his] shows,” id. , the State elicited the following testimony:

10 This report, Nashville Police Department 97- 53946, ICR8, was never offered or admitted into evidence. See 2RR48 (sustaining the State prosecuting attorney’s hearsay objection to the content of the police report be ing read into evidence).Active 20386168.3 40 Q. Now, shows -- how do you ha ndle shows if you see her there? A. Well, I try to prohibit her from being there. In Nashville I could that. Q. How is that? A. Very easily. I had this restra ining order. I would just take pictures of her to the police and say don't allow this person in the building please. When I move d to Texas that didn't really apply for that period of time so we were back inthat same kind of place. Id.

It was not until cross-examination th at Hal finally admitted that what he had been referring to as a restraining or der was in fact a police report. 2RR27. And at no point did the State correct Ha l’s false testimony after conceding to the trial court that the State, too, only ha d a police report that Hal claimed was a restraining order. See id.
Q. When you say you received a re straining order in Nashville, Tennessee you testified that was in 1997, where was that restraining order issued?Active 20386168.3 41 A. In Davidson County. Q. Do you have a copy of that? A. I do. Q. May I see that? A. I don't have it on me at this point in time. MS. MORRIS: Your Honor, may I receive the restraining order? What I have been provided by the district attorney's office is a police report. THE COURT: Do you have it, Mr. Robinson? MR. ROBINSON: No, Your Honor, just the police report. THE COURT: All right. Let's move on. Q. (MS. MORRIS) So is what you provi ded to the -- what the district attorney has in his possession is th at what you're referring to as restraining order?
A. Yes. Id.
Thus, the evidentiary record indisp utably shows that the State never had evidence that Hal ever obtained a rest raining/protective order against Suzanna in Nashville, Tennessee as the State alleged in its application for a protective order on Hal’s behalf. Further, the State elic ited and failed to correct Hal’s repeatedActive 20386168.3 42 false testimony that he had a prior restra ining order against Suzanna. Yet, this false testimony was offered to support allegations of stalking, specifically that Suzanna knew Hal would be threatened by her presence, that Hal was threatened by her presence, and that a reasonable pers on would be threatened by the presence of someone already ordered by a court to stay away. This testimony was false, material, and violated Suzanna’s due proce ss rights. For this reason, this Court should vacate the Amended Order.

B. The trial court further erred in granting relief—specifically, an order with a lifetime duration—that was not requested in the application for protective order. The trial court abused its discretion in entering an order that did not conform to the pleadings as required by Tex. R. Civ. P. 301. Specifically, the trial court erred in entering the stalking protective order under Tex. C ode. Crim. Proc. §7A for Suzanna’s lifetime when a family vi olence protective order was requested in the State’s application for protective order. ICR4-7. Rule 301 stands for the basic idea that “a trial court may not grant relief to a party in the absence of pleadings to support that relief.” Moreno v. Moore , 897 S.W.2d 439, 442 (Tex. App.—Corpus Christi 1995, no writ) (citing Cunningham v. Parkdale Bank , 660 S.W.2d 810, 813 (Tex. 1983); see also Tex. R. Civ. P. 301. “The petition must give fair and adequate notice of the claims being asse rted, and, if the reviewing court cannot reasonably infer that the petition contains a given claim, then the court mustActive 20386168.3 43 conclude the petition does not contain such a claim, ev en under a liberal construction.” Teel v. Shifflett , 309 S.W.3d 597, 602 (Tex. App.—Houston [14th Dist.] 2010, pet. denied). “[T]he part of a judgment... which the pleadings do not support is considered void.” Moreno , 897 S.W.2d at 442. The State’s application for a family violence protective order did not conform to the stalking protective order which should be considered void. The distinction between a protective order und er the Texas Family Code and one under the Code of Criminal Procedure is not a distinction without a difference. The statutes differ in the allegati ons to be proven, the immedi acy of the threats alleged, and the duration of the protective order. Contrary to the trial court’s conclusion that the State prosecuting attorney had just “miscited” the statute in its appli cation, that “miscited” statute was not the only part of the State’s application requ esting a family violence protective order instead of a stalking protective order. 2R R6-9. The State’s application explicitly referenced the Family Code multiple times in stating that “Applicant requests the Honorable Court issue a Protective Order pursuant to Chapter 85 of the Texas Family Code.” ICR4. That Chapter provid es that for a court to issue a protective order, it must first find that family violence occurred and family violence is likely to occur in the future. Tex. Fam. Code . §85.001. Family violence is defined by civil statute in the Family Code—not inthe Texas Penal Code — and requires thatActive 20386168.3 44 the complainant and the accused be ina family or da ting relationship. 11 See id. §§ 85.001, 71.004, 71.003. The State’s appli cation also requested relief that would only logically apply to those in a family or dating relationship, such as requesting that “temporary support and visitation be set,” presumably referring to child support and parental visita tion with a child. ICR5. The State’s application expressly a lleged family violence and stalking, but did not allege a familial relationship. For example, the application alleged that Hal and Suzanna had the rela tionship of “Stalker”, and that Hal “was indeed physically harmed[,] suffered bodily inju ry[,] and was assaulted by Respondent.” ICR6. The State’s alternative allegation was that Suzanna repeatedly threatened Hal, placing him “in reasonable fear of imminent physical harm.” Id. (emphasis added). That physical harm be imminent is a requirement of a family violence protective order, but is not a requirement of the criminal offense of stalking. See Tex. Fam. Code § 71.004(1) (defining “family violence” to include a “threat that reasonably places the me mber in fear of imminent physical harm, bodily injury, assault, or sexual assa ult) (emphasis added); see also Molett v. State , 05-08-00728- CR, 2009 WL 824761, at *10 (Tex. App.—D allas Mar. 31, 2009, pet. ref’d)

11 While family violence can constitute a criminal offense, that offense is Assault and requires proof of the elements of assault with the victim being a member of the actor’s family, as family is defined in the Texas Family Code. Tex. Pen. Code Ann. § 22.01 (providing that misdemeanor assault is enhanced to a third degree felony if the offense is committed against a family member as defined in Tex. Fam. C ode §§71.0021(b); 71.003; or 71.005).Active 20386168.3 45 (holding that imminent bodily injury or death is not a required element for stalking criminal offense). Thus, the inclusion of these allegations shows that the relief the State requested was for family violence, 12 not stalking.
And by entering a stalking protective order when a family violence order was requested, the trial court impe rmissibly entered a lifetime order when Suzanna had no notice that an order longer than two year s was sought. The default duration for a family violence protective order is two years. See Tex. Fam. Code §85.025(a)(1) (providing that the duration is “not to ex ceed two years”). While a court may render a protective order with a duration exceeding two years, to do so, the court must first find that the responden t caused serious bodilyinjury or was the subject of two or more protective orders based on family violence, and that family violence is likely to occur in the future. Id. at § 85.025(a-1). In contrast, a stalking protective order “may be effective for the duration of the lives of the offender and victim or for any shorter period stated in the order. ” Tex. Crim. Proc. Code §7A.03. “If a period is not stated in the order, the order is effective until the second anniversary of the date the order was issued.” Id. Thus, the effect of the

12 The State also prayed for relief available to applicants seeking family violence protective orders that wouldn’t be necessary to parties whose only relationship is that of “stalker.” See Tex. Fam. Code §85.021 (permitting provisions regard ing encumbering property and removing children); ICR7 (requesting, for example, that Su zanna not be permitted to remove children from Applicant or the county, interfere with property owned or leased by Applicant and Respondent). This, too, shows that the St ate applied for a family violence protective order.Active 20386168.3 46 distinction between a request for a family violence protective order and a stalking protective order is the difference be tween two years and a lifetime.
And that difference has permanen t repercussions considering the State’s application never referenced th e criminal statutes under which this Amended Order was granted. See ICR4-6. Further, the State did not request a stalking protective order from the court until the hearing. See 2RR9. Moreover, the State never so much as mentioned thatit sought a protective order than endured for Suzanna’s lifetime until after both sides had rested, when the trial court refused to entertain any protestations from Suzan na’s counsel. 2RR116-117. Yet, without giving any notice to Suzanna that it in tended to seek a protective order under a different statute which permitted more seve re restrictions, the State prepared and presented to the court and Suzanna’s counsel for the first time at the hearing, a lifetime stalking protective order under Tex. Crim. Proc. Code §7A. 2RR9. Thus, this failure to comply the with the civil rules had a material effect on the outcome of this case. This Court should vacate th is protective order because it granted relief not requested and did not conform to the pleadings.

C. The trial court erred in excluding testimony relevant to Hal’s allegations. The trial court improperly exclude d testimony regarding facts and circumstances relevant to Hal’s allegati ons as too remote and relied on evidenceActive 20386168.3 47 not in the record. “In a prosecution for stalking, each party may offer testimony as to all relevant facts and circumstances that would aid the trier of fact in determining whether the actor’s conduc t would cause a reasonable person to experience a fear...including the facts and circumstances surrounding any existing or previous relationship between the actor and the alleged victim.” Tex. Crim. Proc. Code § 38.46. This provision was a dded to ensure that the fact finder has a clear picture of why a certain course of conduct cause the alleged victim fear. Senate Bill 82 Bill Analysis Acts 2011, 82nd Leg., ch. 591 (S.B. 82), § 3, eff. Sept. 1, 2011. In this case, where the trial court base d its order on Hal’s testimony that, for decades, Suzanna was “showing up, includ ing other cities and places, where [Hal] is,” II RR 121, any testimony about the par ties’ interactions over the years would be relevant. Over those decades, Ha l had had multiple wives who he claims witnessed Suzanna’s behavior. 2RR 14-16, 22-23. Thus, the trial court’s interjection that Suzanna’s counsel wa s asking too many questions about Hal’s wives improperly directed the attorney to limit questioning to Hal’s current wife’s involvement in “the past year or so.” 2RRR22. Likewise , the trial court’s frequent admonitions to Suzanna’s counsel to “m ove on” effectively excluded testimony, especially when Hal boldly asserted thathe was “not going to answer [her] question.” Id. at 28, 32, 34, 104. And because of those exclusions, this record isActive 20386168.3 48 silent as to what unlawful conduct Hal cl aims Suzanna has e ngaged in during the 16-year period of her alleged stalking. See id. at 35, 42. Hal was not permitted to testify as to what contact Suzanna had with him since 1997. Id. at 35. Q. So what contact has she had with you with? What contact has she made with you since then [1997]? A. Since then? Q. Uh-huh. A. Constant presence I guess. I mean, I don't know. I don't know how to describe this ki nd of psychological warfare because I don't practice it. If so mebody said stay away from me I stay away from that person. I don't understand this concept legally or otherwise why someone would do this for 16 years. MS. MORRIS: Objection, nonresponsive. THE COURT: Overruled. Id. at 35. Nor was Hal permitted to testify as to how he claims Suza nna has threatened him for the past 16 years. Q. Now, beginning in 1997 what had she done to threaten -- by she I'm referring --Active 20386168.3 49 MR. ROBINSON: Your Honor, obj ection. Asked to asked and answered. Q. (MS. MORRIS) What had sh e done to threaten you? THE COURT: Sustained. Next question. MS. MORRIS: Your Honor, I don't believe he has answered -- THE COURT: I have heard everything about 1997 and we don't seem to be moving forward. I assume at some point we're going to be moving forward to this particular time period that we're talking about. I have no author ity over what happened. I understand the need to discuss some of the history, so I'm giving you some latitude there. But we're talking about what has happened here, I belie ve, in the last year, year-and-a-half or

so. Id. at 42.

The trial court erred in excludi ng relevant testimony.

D. The trial court erred in concludi ng that its order was necessary. Even had the trial court’s finding of stalking been based on credible evidence that was legally and factually su fficient, the trial court still erred in finding that the provisions of the ente red Amended Order we re necessary andActive 20386168.3 50 appropriate to prevent or reduce the likeli hood of future harm to Hal or a member of his family or household. 3SCR7-10. Under the Amended Order, Suzanna is “[p]rohibited from taking photos or images of applicant, applicant’s children, spouse, grandchildren, or a nyone in applicant’s household.” 3SCR8. Suzanna is also prohibited from going to or near re sidence, businesses, schools, or child-care facilities for Hal and his family, incl uding his grandchildren. 3SCR8. Additionally, Suzanna is prohibited from being within 1,000 feet of any venue where Hal is performing beginning three hours before the performance until three hours after the performance. Id. Nor can Suzanna, living in a rural part of Wimberley, own or possess a firearm. Id. And all of these provisions endure for Suzanna’s lifetime based on her run-ins with Hal due, for example, to her work as a photojournalist and an alleged warning to Hal that if he me ssed with her, he would be sorry. There was no eviden ce of unlawful conduct constituting the criminal offense of stalking.

Because of the small size of Wimb erley, such an order prevents Suzanna from going to the central comme rcial area of town to conduct any business. This is so despite the trial court’s reduction of the stay-away provisions from 1,000 yards in the original order to 1,000 feet in the Amended Order. See Appendices 2, 4. Thus, even the provisions of the Amended Order are restrictive and incongruous as compared to the evid ence supporting the trial court findings.Active 20386168.3 51 In re Wean , 03-10-00383-CV, 2010 WL 3431708, at *8 (Tex. App.—Austin Aug. 31, 2010, no pet.) (conc luding that it was an abuse of discretion for Judge Stephens to issue a final protective order and noting the incongruity between the scarcity of evidence of family violen ce and the significance of the requirements placed on respondent by the final protective order).
This Court has the power to correct and modify the trial court's judgment. See Tex. R. App. P. 43.2(b). Shou ld this improvidently granted protective order stand (which it should not), this Court should revise the provisions of the order so as not to infringe on Suzanna’s liberties for a lifetime duration.

CONCLUSION AND PRAYER For these reasons, this Court should vacat e this protective order. There is no evidence to support the order, and the order is unconstitutional, so vacating the order is the desired relief. As alternative relief, this Court shou ld remand for a new hearing and modify the restrictions of this protective order pending re-hearing.Active 20386168.3 52 Respectfully submitted, By: /s/ Mysha Lubke Mysha Lubke State Bar No. 24083423 mysha.lubke@bakerbotts.com B AKER B OTTS L.L.P. 98 San Jacinto Blvd., Suite 1500 Austin, TX 78701 Telephone: (512) 322-2500 Facsimile: (512) 322-2501 A TTORNEY FOR A PPELLANT S UZANNA E CKCHUMActive 20386168.3 53 CERTIFICATE OF COMPLIANCE As required by Texas Rule of Appe llate Procedure 9.4(i)(3), I certify that this brief contains no more than 12, 564 words, excluding the parts of the brief exempted by Rule 9.4(i)(l).

/ s / Mysha Lubke Mysha LubkeActive 20386168.3 54 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing has been served by electronic mail and by fax on this 24th day of August, 2015: Counsel for the State of Texas for the Protection of Hal Ketchum: The Honorable Jennifer A. Tharp Comal County Criminal District Attorney 150 North Seguin, Suite 370 New Braunfels, Texas 78130 / s / Mysha Lubke Mysha LubkeActive 20386168.3 55 APPENDIX 2005 Tennessee Laws Pub. Ch . 381 (S.B. 645) ........................................ Appe ndix 1 Trial Court’s Amendments the Stal king Protective Or der ....................... A ppendix 2 Map Showing 1,000 feet radius from Katherine Anne Porter School in Wimberley, Texas ..................................................................... Appendix 3 Appealable Amended Stalking Protective Orde r ...................................... Appe ndix 4

# APPENDIX 1

1Chapter No. 381] PUBLIC ACTS, 2005 1

CHAPTER NO. 381 SENATE BILL NO. 645 By Hagood, McLeary, Ketron, Burks, Curtis S. Person, Jr., Beavers, Black, Bryson, Burchett, Chism, Cohen, Cooper, Crowe, Cr utchfield, Finney, Ford, Fowler, Harper, Haynes, Henry, Herron, Jackson, Kilby, Kurita, Kyle, McNally, Miller, Norris, Ramsey, Southerland, Tracy, Williams, Mr. Speaker Wilder Substituted for: House Bill No. 460 By Sontany, Sherry Jones, Eldridge, Todd, Langster, Pruitt, Moore, Hackworth, Harmon,

Bone, Shaw, West, Cobb, Ferguson, Fraley, Davidson, Curtiss, Fowlkes, Mike Turner, Hood, Odom, Armstrong, Tindell, Larry Turner, Shepard, Tidwell, Litz, Buck, Maddox, Favors, Harwell, Winningham, Lois DeBerry, Vaughn, Pinion, Brown, Marrero, Coleman, DuBois, Gresham AN ACT to amend Tennessee Code Annotated, Title 36, Chapter 3, Part 6; Title 39, Chapter 13, Part 5 and Title 39, Chapter 17, Part 3, relative to orders of protection and the scope thereof. BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE: SECTION 1. Tennessee Code Annotated, Section 36-3-601, is amended by deleting items (3), (5) and (7) and substituting instead the following: (3) “Domestic abuse” means committing abuse against a victim as defined in subsection (8); (5) "Petitioner" means the person alleging domestic abuse, sexual assault or stalking in a petition for an order for protection; (7) "Respondent" means the person alleged to have abused, stalked or sexually assaulted another in a petition for an order for protection; SECTION 2. Tennessee Code Annotated, Section 36-3-601, is amended by adding the following new numbered items: ( ) “Abuse” means inflicting or attempting to inflict physical injury on an adult or minor by other than accidental means, placing an adult or minor in fear of physical harm, physical restraint, or malicious damage to the personal property of the abused party; ( ) “Stalking victim” means any person, regardless of the relationship with the perpetrator, who has been subjected to, threatened with or placed in fear of the offense of stalking as defined in § 39-17-315; ( ) “Sexual assault victim” means any person, regardless of the relationship with the perpetrator, who has been subjected to, threatened with or placed in fear of any form of rape, as defined in §§ 39-13-502, 39-13-503, 39-13-506 or 39-13-522, or sexual battery as defined in §§ 39-13-504, 39-13-505, or 39-13-527;Chapter No. 381] PUBLIC ACTS, 2005 2
SECTION 3. Tennessee Code Annotated, Section 36-3-602, is amended by deleting subsections (a) and (c) in their entirety and substituting instead the following: (a) Any victim who has been subjected to, or threatened with or placed in fear of, domestic abuse, stalking, or sexual assault may seek a relief under this part by filing a sworn petition alleging such domestic abuse, stalking, or sexual assault by the respondent. (c) Venue for a petition for an order of protection and all other matters relating to orders of protection shall be in the county wher e the respondent resides or the county in which the domestic abuse, stalking or sexual assault occurred. If the respondent is not a resident of Tennessee, the petition may be filed in the county where the petitioner resides.” SECTION 4. Tennessee Code Annotated, Section 36-3-605, is amended by deleting subsections (a) and (b) in their entirety and substituting instead the following: (a) Upon the filing of a petition under this part, the courts may immediately, for good cause shown, issue an ex parte order of protection. An immediate and present danger of abuse to the petitioner shall constitute good cause for purposes of this section. (b) Within fifteen (15) days of service of such order on the respondent under this part, a hearing shall be held, at which time the court shall either dissolve any ex parte order which has been issued, or shall, if the petitioner has proved the allegation of domestic abuse, stalking or sexual assault by a preponderance of the evidence, extend the order of protection for a definite period of time, not to exceed one (1) year unless a further hearing on the continuation of such order is requested by the respondent or the petitioner; in which case, on proper showing of cause, such order may be continued for a further definite period of one (1) year after which time a further hearing must be held for any subsequent one-year period. Any ex parte order of protection shall be in effect until the time of the hearing and, if the hearing is held within fifteen (15) days of service of such order, the ex parte order shall continue in effect until the entry of any subsequent order of protection issued pursuant to § 36- 3-609. If no ex parte order of protection has been issued as of the time of the hearing, and the petitioner has proven the allegation of domestic abuse, stalking or sexual assault by a preponderance of the evidence, the court may, at that time, issue an order of protection for a definite period of time, not to exceed one (1) year. SECTION 5. Tennessee Code Annotated, Section 36-3-606, is amended by deleting from subsection (a) the following language: (a) A protection order granted under this part to protect the petitioner from domestic abuse may include, but is not limited to: (1) Directing the respondent to refrain from committing domestic abuse or threatening to commit domestic abuse against the petitioner or the petitioner's minor children; and substituting instead the following:Chapter No. 381] PUBLIC ACTS, 2005 3
(a) A protection order granted under this part to protect the petitioner from domestic abuse, stalking or sexual assault may include, but is not limited to: (1) Directing the respondent to refrain from committing domestic abuse, stalking or sexual assault or threatening to commit domestic abuse, stalking or sexual assault against the petitioner or the petitioner's minor children; SECTION 6. Tennessee Code Annotated, Section 36-3-613, is amended by deleting the section in its entirety and substituting instead the following: (a) The petitioner's right to relief under this part is not affected by petitioner's leaving the residence or household to avoid domestic abuse, stalking or sexual assault. (b) The petitioner's right to relief under this part is not affected by use of such physical force against the respondent as is reasonably believed to be necessary to defend the petitioner or another from immine nt physical injury, domestic abuse, or sexual assault. SECTION 7. This act shall take effect July 1, 2005, the public welfare requiring it.
PASSED: May 24, 2005

APPROVED this 9 th day of June 2005

# APPENDIX 2

1CAUSE NO. C2014-1690C § IN THE COUTY COURT# 2

§ COURT OF STATE OF TEXAS FOR THE PROTECTION OF HAL KETCHUM APPLICANT v. SUZANNA EKCH UM, AKA SUSAN ECKHERT RESPONDENT § COMALCOUNTY, TEXAS

**AMENDED STALKING PROTECTIVE ORDER**  On the 16th day

o f JANUARY, 2015, came to be heard the Application of HAL KETCHUM for a Protective O rder.

__x

_ HAL KETCHUM appeared in person and announced r eady.

__x

_ SUZANNA EKCHUM, AKA SUSAN EC KHERT appeared in p erson an d an d announced ready.

___ SUZANNA EKCHUM, AKA SUSAN ECKHERT appeared b y his attorney, _______________,and announced read y.

___ SUZANNA EKCHUM, AKA SUSAN ECKHERT did not appear, although dul y and properl y served noticed by Writ. The Court, having considered the pleadings and heard the evidence and the argu ments, finds that all necessary, prerequisites of the law have been legall y s atisfied and that this Court has jurisdiction over the parties and the subject matter of this cause. The Court finds there are reasonable grounds to believe that t he applicant is the victim stalking by

r espondent and the following orders are necessary f or the safety , welfare, and protection of HAL KETCHUM, and other members of the families or household who are affected by this suit. **IT IS**  **THEREFORE ORD**  **ERED** that Respondent, SUZANNA EKCHUM, AKA SUSAN ECKHERT be and hereb y is prohibited from: (1) Committing acts of stalking; (2) Communicating: (a) directly

with a person protected b y an order or a member of the fami ly or household of a person protected b y an order, in a threatening or harassing manner; (b) a threat through an y person to a person protected by a n order, or a member of the family or household of a person protected by an order; and (c) in any

manner, including through a third part y, with a person protected b y an order, except through the part y' s attorney or a person appointed by the court;(3) Going to or near the residence or place of employment or business of a person protected by

an order or a member of the family or household of a person protected by an order; (4) Going to or near the residence, child

- care facility , or school a child or grandchild protected under the order attends or in which the child or grandchild normally resides; (5) Going within 1,000 ya rds feet of an y venue where applicant is performing during the following times: during applicant's performance, three (3) hours prior to appli cant's performance, and three (3) hours immediately after applicant's performance; (6) Prohibited from taking photos or images of applicant, applicant's children, spouse, grandchildren, or an yone in applicant's household; (7) En gaging in conduct directed specifically toward a person who is a person protected b y an order or a member of the family or household of a person protected by an order, including following the person, that is reasonably likel y to harass, anno y, alarm, abuse , torment, or embarrass the person; **GOING WITHIN**  **1000 YARDS**  **FEET OF**  **THE FOLLOWING**  **PERSONS OR**  **LOCATIONS: HAL KETCHUM**  **ROSE KETCHUM ANDREA KETCHUM**  **RE SIDENCE:**  **115 Fischer**  **St o**  **re RD,**  **Fischer TX**  **78623, f**  **o r**  **a s**  **long a**  **s a**  **pplica nt**  **o r**  **protected persons**  **reside a**  **t t**  **hat location,**  **or any**  **future pla**  **ce of**  **residence WORK:**  **or any**  **current or**  **future place**  **of employment**  **known by**  **SUZANNA EKCHUM,**  **AKA SUSAN**  **ECKHERT, as**  **long as**  **applicant or**  **protected persons**  **work at that location. SCHOOL:**  **Katherine Ann**  **Porter School,**  **515 FM**  **2325 Wimberley,**  **TX, 78676**  **or any**  **future school facility , as long as protected person attends that school** 
IT IS O RDERED that any l icense or permit to carr y an y concealed hand gun for Respondent is suspended for her lifetime. THE CL ERK IS ORDERED to send a cop y o f this order t o: The Chief of Police of the City of New Braunfels, Comal County , Texas; the Sheriff of Comal County , Texas; the Texas Department of Public Safet y, Austin, Texas; any school or child care facility i ncluded in this Order. **"A PERSON**  **WHO VIOLAT**  **ES THIS**  **ORDER MAY**  **BE PUNISHED**  **FOR CONTEMPT**  **OF C**  **OURT BY**  **A FINE**  **OF A**  **S MUCH**  **AS $500.00**  **OR BY CONFINEMENT**  **IN JAIL FOR AS LONG AS SIX MONTHS, OR BOTH." "NO**  **PERSON, INCLUDING**  **A PERSON**  **WHO IS**  **PROTECTED BY**  **THIS**

**ORDER, MAY**  **GIVE PERMISSION**  **TO ANYONE**  **TO IGNORE**  **OR VIOLATE**  **ANY PROVISION**  **OF T**  **HIS ORDER.**  **DURING THE**  **TIME IN**  **WHICH THE**  **ORDER IS**  **VALID, EVERY**  **PROVISION OF**  **THIS ORDER**  **IS IN**  **FULL FO**  **RCE AND**  **EFFECT UNLESS A COURT CHANGES THE ORDER."**  **"A VIOLATION**  **OF THIS**  **ORDER BY**  **COMMISSION OF**  **AN ACT**  **PROHI BITED**  **BY THE**  **ORDER MAY**  **BE PUNISHABLE**  **BY A**  **FI NE**  **OF AS**  **MUCH AS**  **$4,000.00 OR BY**  **CONFINEMENT IN**  **JAIL FOR**  **AS LONG**  **AS ONE**  **YEAR, OR BOTH.**  **AN ACT**  **THAT RESULTS**  **IN STALKING**  **MAY BE**  **PROSECUTED AS**  **A SEPARATE**  **MISDEMEANOR OR**  **FELONY OFFENSE.**  **IF THE**  **ACT IS**  **PROSECUTED AS**  **A SEPARATE FELONY OFFENSE, IT IS PUNISHABLE BY CONFINEMENT IN PRISON**  **FOR AT LEAST TWO YEARS." "IT**  **IS UNLAWFUL FOR ANY PERSON WHO IS SUBJECT**  **TO A PROTECTIVE**  **ORDER TO POSSESS A FIREARM OR AMMUNITION."** All said Protective Orders cont ained herein shall continue in full force and effect until the lifetime of either party

(HAL KETCHUM or SUZANNA EKCHUM a.k.a. SUSAN ECKHERT). SI GNED this 22nd 7th day of January Apr il , 2015.

__ _____________________________________ JUDGE PRESI DI

NGDocument comparison by Wo rkshare Compare on Monday, August 03, 2015

2:41:08 PM **Input:** Document 1 ID interwovenSite://BBDMS/Active/20289153/1 Description #20289153v1<Active>

- Stalking PO (word doc) Document 2 ID interwovenSite://BBDMS/Active/20289152/1 Description #20289152v1<Active>

- Amended Stalking PO (word doc) Rendering set Standard **Legend:** Insertion Deletion Moved from Moved to Sty le change Format change Moved deletion Inserted cell Deleted cell Moved cell Split/Merged cell Padding cell
**Statistics:** Count Insertions 11 Deletions 9 Moved from 0 Moved to 0 Style change 0 Format changed 0 Total changes 20

# APPENDIX 3

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# 1 0 0 0 F e e t f r o m K a t h e r i n e A n n P o r t e r S c h o o l

F r e e M a p T o o l s R a d i u s P o l y g o n

# APPENDIX 4

1