Affirmed and Memorandum Opinion filed July 28, 202 2

.

In The 

## Fourteenth Court of Appeals

NO. 14

- 20

- 00763

- CV

JACOB DARRIN STRAUGHAN , Appellant
V.
NICOLE ROSE GIRSCH , Appellee

On Appeal from the 280th District Court Harris County, Texas Trial Court C ause No. 2020

- 37964

MEMORANDUM OPINION

A ppellant Jaco b Darrin Straughan ( “ Straughan ” ) a ppeals a prote ctive order in favor of appellee Nicole Rose Girsch ( “ G irs ch ” )

. In four issues, Straughan argues that (1 ) the evidence was legally and factually insuffic ient to support the prot ective order duration for Straughan ’ s lifetime , prohibiting Straughan from possessing a firearm without the benefit of a jury trial and in violation of the
S econd A mendment to the U nited S tate s Constitution ; (2) the trial court er re d in order ing Str augha n to continue psychiatric treat ment and follow changes to the2 treatment p lan for the lifetime of Straughan ; (3) the trial court abused its discretion when it ordered Straughan to sell his firearms ; and (4) the trial court erred b y

e x c luding certai n evidenc e . We affirm

. I. B ACK GROUND On June 25, 2020 , Girsch filed an application for a protective order, stating that Straughan en gaged in con duct that cons tituted family violenc e, as defined in § 71.004(a ) of the Texas Family Code, and in t he alternative , that S tr aughan engaged in con duct towards Girsch that constituted stalking and harassment under the Texas Penal Code. See Tex. Code Crim

. Proc. Ann. ch . 7 B ( governing protective ord ers under the Code of Criminal Procedure) 1 ; Tex. Fam. Cod e An n. ch. 85 (go verning p rotective orders under the Family Code) ; see also Tex. Fam. Code Ann. § 71.00 4(a ); Tex. Penal Code Ann. § § 42.07, 42.072

. G irsch ’ s protective order was tried to the bench on October 21, 2020. (2RR). Girsch testified that Straughan i s her ex

- husban d and tha t they were married for five years

. Evidence was admitted regar ding an incident on or about April 17,
20 20. On that day, Straughan told Girsh that he w ante d to pick up some belonging s from Girsch ’ s home. Girsch ag reed to allow Straugh an to pick up items from the garage, but Straughan began to grab items that did no t belong to him and refused to leave when asked by Girsch

. Straughan then attempted to force his way into Girsch ’ s house , pushing a door behind which Girsch a nd her sister we re standing , slamming Girsch and her sister i nto a wall. P hotographs were int ro duce d into evidence showing bruising on Girsch ’ s arm and leg f rom this assault.

1 D uring the u nde rly ing proceedings , the provisi ons in the Texas Code of Criminal Procedure gove rning protective ord ers were loca t ed in Ch apter 7A. See Act of May 16, 2011, 82nd L eg., R.S., ch. 135, § 2, art. 7A.01, 2011 Tex. Gen. Laws 640, 640 (repe al ed 2019 ). Code of Cri minal Procedure Chapter 7A was repealed by the Texas Legislature in the 2019 le gislative session, a nd these prov i sions were recodified without substantive amendme nt in Chap ter 7B , which took effect on Jan uary 1, 2021.3 Girsch testified that St raughan “ c ontin ue d to h arass and stalk me ” following their separation ; th at he was verbally abusive and threatening and would get very angry at times; that he attempted to track her location through the Sn apc hat application a nd “ find my frien ds ” feature on the iP hone ; t h at there were a co uple of instances w hen Straughan physica lly injured Girsch ’ s cat by picking up the cat by the ne ck w hen the cat w ent o utside and throwing the cat indoors ; and that
Str aughan has both a history of diagnosed mental ill ness an d ab uses or us e s alcohol or drug s, which intensifie s the aggression he in f licts or in the family violence incidents that occur

. Girsch also testified regarding an incident on or about Dec emb er 1, 2019 , afte r Girsch and Straughan were separated

. That evening , Girsh returned home with a man she was dating, Anthony, an d fo und St r aughan inside her house.
St raughan had sent G irsc h tex t messa ges and call ed her repeate dly up to tha t p oint.
A confrontation ensued ; de s pite An thony repe a ted ly stating that he did no t want to fi ght , Straughan hea d butte d Anthony in the face “ when A nthon y we nt to call the
cops , ” causing serious injuries to Ant hony

. As a result, Strau ghan was ch arged with assault

- family member and evading arrest or detention

. The next morning , G irs ch found a gun on her nightstand tha t she belie ved b elong to S traug han. Furtherm ore , despite bond conditions pr ohibi ting Straughan from conta cting
G irsch following his arrest , Straughan co ntin ued to send Girsch texts and called her in a threatening and h ara ssin g manner and cont inued to stalk her by app earing at multiple locations wher e she had been and by driving by her house

. Girsch test ified tha t she was afr a id that Straughan ’ s threats, vio lence, and stalk ing would continue , that she did not feel Straughan would stay away from her, that she had to hire security t o sit outside her ho use after the Decembe r incident , and that she did not have “ a s af e place

. ” Girsch testified t hat she believed the4 rea son w hy there had been no incidents with Straughan in th e five m onths preceding the hearing was because he was charged with a felony offens e of rep eat violation or a protective order or bond condition followi ng t h e April 17 th incident.

At the close of the he aring, the trial court or ally pronounced its findings stating that : Straughan a nd Girsch are me mbers of the same family or household o r

w ere previously in a dating relationship; Straughan and Girsch have n o chi l dren, therefo re there is no r eason for the m t o continue having any contact; fami ly violence has occ ur red , is likely to occur in the futur e, and Straughan has committed family viol enc e; and that ther e are reas onable grounds to believe that Girs ch i s a victim of stalking and harassment under the Tex as Penal Code “ and or ” Chapter 7A of the Texas Code of Criminal Procedure. The t rial court orally pronounced that it was granti ng the protec tive order for the duration of Straughan ’ s life and th a t , d uring the du ration of the order, S traughan w as orde red to : not physically harm or threaten Gi rsch ; not communicate with Girsch in any manner, except through an attorney or a person app ointed by the co urt; no t visit Girsch ’ s residen ce or her place of wor k now or in the future; not rem ain in the sa me location as Girsch upon learning of her pres ence; and not possess any guns, ammun ition , or a concealed license to carry a gun. The trial court also order ed that Straughan pay Girsh ’ s attorney ’ s fee s and cos ts , attend a batter ing int ervention and prev ent ion course, and continue with any treatment plan ordered by his tr eating psychiatrist

. On October 28, 2020, the trial court signed a protective order incorp orating its fin ding s and order s ; howev er, the trial court did not in clude in its written order a requirement that Straughan con t inue his psychiatric treatment and continue with any treatment p lan

. T h is appeal follo wed.5 II. D ISC USSION
A

. S TANDARD OF R EVIEW
We r eview the tria l court ’ s find ings in a protective order proceed ing for legal and f act ual sufficiency. See Sta te for B.H. v. J.D. , No. 01

- 20

- 00316

- CV, 2 022 WL 320056, at * 5 (Tex. App.

— Houston [1st Dist.] Feb. 3, 202 2, no pet.) (mem. op) ; Dolge ner v. Dolgen er , No. 14

- 1 9

- 00 6 45

- CV, __ S.W .3d _ _, __, 2021 WL 3883619, at *9 (Tex. App.

— Houston [1 4th Dist.] Aug. 31, 2021, no pe t.) ; Caballero v. Caballero , No. 14

- 16

- 00513

- CV, 2017 WL 6374724, at *3 (Tex. App.

— Ho uston [14th D ist.] Dec. 14, 2017, no pet.) (mem. op

. ). Evidence is lega lly sufficient if, viewing all the evidence in the li ght m ost favorable to t he fact

- finding and consideri ng undis puted contr ary evidence, a reasonable factfinder could form a firm belief or con viction that the finding was
true. In re A.C. , 560 S.W.3d 624, 631 (Tex. 2018). In conducting a legal

sufficiency re view , the reviewin g cou rt cannot ignore undisputed e vidence contrary to th e finding, but it must otherwise assume the factfinder resolved di sputed facts in favor of the finding. Id. at 6 30

– 31. In a factu al sufficiency review, we examine the entire record a nd c o nsider and we igh a ll the evide nce, both in
supp ort of, and contrar y t o, the challenged finding. See id. Having considered and weighed a ll the evidence, we should set aside the judgm ent only if the e vidence is so weak, or the finding so against the gre at w e ight and prep onde rance of the evidence, that it is clearly wrong a nd unjust. Boyd v. Palmore , 425 S.W.3d 425,
429 (Tex. App.

— Houston [1 st Dist.] 2011, no pet.) (citing Cain v. Bain , 709 S.W.2d 175, 176 (Tex. 1986)); see In re A.C. , 560 S.W.3d at 631.

Addi t ionally, w e r evie w the prohibitions and awards entered in a protec tiv e order for an abuse of discretion. See In re Doe , 19 S.W.3d at 25 3 (“The abuse of dis cretion standard applies w hen a trial court has discretion either to grant or deny6 relief based on i t s factual det ermi nations.”) ; see also Dolge ner , 2021 WL 3883619,

a t * 9

. We likewise review a trial court ’ s evidentiary r ulings for an abuse of discretion. See U

- Haul, Int ’ l Inc. v. Waldrip , 380 S.W

. 3d 118 , 132 (Tex. 2012)

. A trial co urt abuses its discretion if it acts ar bitrarily or unreasona bly o r wi thout reference to gui ding rules or principles. Flowers v. Flowers , 407 S.W.3d 452, 457 (Tex. App.

— Houston [14th Dist.] 2013 , no p e t. ) ; see Worford v. Stamper , 801 S.W.2d 108, 109 (Tex. 1990) (pe r curiam).

B

. A PPLICABLE L A W

P r otective orders are g over n ed by provisions in bo th t he Family Code and the Code of Criminal Procedure

. Shoemaker v. State for Protection of C.L. , 493 S.W.3d 710 , 7 15 (Tex. App.

— Hous ton [1st Dist.] 2016, no pet.) ; Kloecker v. Lingar d , No. 01

- 19

- 00533

- C V, 2 0 21 WL 2096663, at *4 (Tex

. Ap p.

— Houston [1st Dis t.] May 25, 202 1, pet. denied) (mem. op ) ; see Tex. Code Crim

. Proc. Ann. ch . 7 B ; Tex. Fam. Cod e Ann. subtit

. B

. F am ily Code § 82.002 allows a person to file an application for a protective order to prote ct a gainst family violence

. Se e Te x. Fam. C ode Ann. § 82. 002 (setting out who may file application for protective order and under which circumstances); see also id. § 7 1.004 (defining “f amily violence ” )

. Code of Criminal Proced ure article 7A.01 allow e d a p erso n who is a victim of stalk i ng, among other specif ied criminal offenses, to file an application for a protective order

. See Act of May 16, 2011, 82nd Leg., R.S., c h. 135, § 2, art. 7A .01, 2011 Tex. Gen. Laws 640, 640 (repeal ed 2019) ; Kloe cker , 2 0 21 WL
2 096663 at *4 ; see also Tex. Code Crim

. Proc. Ann

. art

. 7b .0 01(a)

. Under the Family Code, a fter a hearing on an appli cation for a p rotective order , the trial court deter mine s whether family violence ha s occurred and whether family viole nce is likely to occ ur in t h e future

. Tex. Fam. Co de Ann. § 85.001(a)

. For protective orders sought under Chapter 7A , the trial court determine s whether7 there are rea sonable grounds to beli eve that the applicant is a vict im of stalking. Act of May 16, 201 1, 82nd Leg., R.S., c h. 135, § 4, art. 7A.03, 2011 Tex. Ge n. Laws 640, 641 (repealed 2019); Shoemaker , 493 S.W.3 d at 717.

In a protective order , the trial court ma y prohibit a person found t o have committed family violence from certain act ions , including communicati ng directly or indirectly with a person protected by the ord er; going to or near the residence, place of emplo yment, or school of a person protected by the order; en g aging in condu ct that is reasonably likely to harass, annoy, alarm, abuse, torment, or emb arrass the person protect ed by the order; and possess ing a f irearm. Tex. Fam. Code Ann. § 85.022(b); see also Tex. Code Crim

. Proc. Ann. art. 7B.005(a)(2) (allowing t rial court to prohibit offender from engaging in most of actions described in Family Code § 85.022(b) , including po ssess i ng firearm); Act of Ma y 20, 2 003, 78th Leg., R.S., ch. 836, § 1, art. 7A.05, 20 03 Tex. Gen. Laws 2622, 2623 (repealed 2019) (prio r ver s ion of article 7B.005)

. T he general rule is th at the duration o f a Family Code protective order may

n ot exceed t wo year s, although the court may issue a protective order for a longer period if the co urt finds that the respon d ent “committed an act constituting a felony

o f fense involving f amily violenc e against the applicant or a member of the

a

p plicant ’ s f amily or ho usehold

. . . . ” Tex. Fam. Code Ann. § 85.025(a), (a

- 1).
P rotective orders issued under Code of Criminal Pro c edure article 7A.0 7 , however, “may be effective f or the duration of the lives of the offender and victim” or “for
any s h orter period sta ted in the or der.” Act of May 28, 2007, 80th Leg. , R.S., ch. 882, § 3, art. 7A.07, 2 2007 Tex. Gen. Laws 1902, 1902 (re p ealed 2 019); see also

2 Specifical ly, A r ticl e 7A.07(a ) p rov ided that “ A pro tective order under A rticle 7A.03 may be effective for the dura tion of the lives o f the offender and victim o r for any shorter period stat e d in th e order

. I f a period is not stated in the order, the order is effecti ve unt il t he second
an niv ersary of the date the order was issued. ” Act of May 28, 2007, 80th Leg., R.S., ch. 882, § 3,8 Tex. Code Crim

. Ann. art. 7B .007(a) (“A protective order is sued under Article 7B.003 may be effect i ve for the durat ion of the liv es of the offender and victim or fo r any shorter period stated in the order.”); Beac h v. Beach , No. 01

- 1 9

- 00123

- CV, 2020 WL 1879553, at *3 (Tex. App.

— Houst on [1st Dist.] Apr. 16, 2020, n o pet.) (mem. op.) (stating that, under article 7A.07, t rial c ourt has discretion to make protective orde r effective for duration of lifetimes of offender and victim).

C. S UF F ICIENCY OF TH E E VIDENCE In his first issue, Straug han argues that the evidence is legally and factually insuf ficie nt to s how that he is l ikely to commit an act of family violence in the future , as defined by § 71.004 of the Texas F amil y Code , which is a f i nding necessary for the issuance of a protective o rder unde r the Family Code

. See Tex. Fam. Code A nn. § § 71.004 , 85.001 (a)(2)

. But the tria l court ’ s order also provides that “ [t]he court finds that there are re asonabl e grounds to be l ieve that [Girsch] is the victim of Stalking a nd that [Straughan] has eng aged in condu ct towards [Girsch] as descr ibed i n Texas Penal Code Sec t ions 42.072 (Stalking) , 42.07 (Harassment), and Chapter 7A of the Texas Code of Criminal Procedur e

. . . . ” This is an independent basis for affirming the trial court ’ s order.
Here, Str augh an does not challenge the le gal a n d factual sufficiency o f the evidence support ing the findings by the t r ial court needed for the imposition of a protecti ve order under t he Code of Criminal Procedure

. See Act of May 28, 2007, 80th Leg., R.S., ch. 882, § 3, art. 7A.07, 2007 Tex. Gen. Laws 1 9 02, 1902 ( repealed 2 0 1 9) ; see also Tex. Code Crim

. Ann. art. 7B.00 3. T he Code of Cri minal Procedure also provides that the trial court may e n ter an o rder for the d uration of Straughan and Girsch ’ s l ifetime. See Act of May 16, 2011, 82nd Leg., R.S., ch.
13 5, § 2 , art. 7A.01, 20 11 Tex. Gen. Laws 640, 640 (repeal ed 2019)

. There fore , we

art. 7A.07, 2007 Tex. Gen. Laws 1902, 1902 (repealed 2 019)

.9 reject Stra u ghan ’ s argument contending t hat evidence was lega l ly and factually insuf ficient for t he findings nece ssary under the Family Co de t o impose the protective order for the duration of Straug han ’ s life

. See Hagberg v. City of Pasadena , 224 S.W.3d 477, 481 (Tex. App.

— Ho uston [1st Dist.] 20 07, no pet.) ( “ [W]hen a judgment o r order may have been based upon grounds not challenged

on appe a l, a court of appeals must normally affirm. ” ); Britton v. Te x. Dep ’ t of
Crim

. Justice , 95 S.W.3d 676, 681 (Te x. App

. — Houston [1st Dist.] 2 002, no pet. ) ( “ Gene rally speaking, an appellant must attack all independent bases or grou nds tha t fully support a co m plai ned

- of ruling or judgment. ” )

. Finally, Straughan argu es under this issue that the trial court ’ s orde r in fringe s on his Second Amendme nt right to possess a firea rm. See U.S. Const

. Amend. II. However , Str aughan did not object to this prohibition i n the protective order or advance his constitutional arg ument at t he trial court. Thus, this argu ment has been w aived. See Tex. R. App . 33.1(a); Jacquot v . Coker , No. 14

- 20

- 00123

- CV , 2022 W L 1 1801 38, at * 9 (Tex. App.

— Houston [14th Dist.] Apr. 21, 202 2, no pet. ) (mem. op.) ( “ Even constitutional c laims, such as d ue process complaints, ca n be waived with out a pr oper o b jection. ” ( citing In r e L.M.I. , 119 S.W.3d 707, 708 (Te x. 2003)) ).

We overrule Str aughan ’ s first issue.

D. P SYCHIA TRIC T REATMENT

In h is second issu e, Str aughan argues that the trial c our t erred by e ntering a
pro tective order for Girsch ’ s lifetime tha t o r dered Straughan to con tinue psychiatric tr eatment and foll ow all changes to the treatment p lan. To preserve error for appellate revi e w , the re cord must f irst show that the complaint w as made to the trial court by a timely request, objection , or mo tion. S ee10 Tex. R. App. P. 33. 1(a ); In re C.O.S. , 988 S.W .2d 760 , 765 (Tex. 1999) (requiring party to appraise trial court of error befor e err o r c an bec ome b asis for revers al). Here, Straughan did not object to the trial court ’ s oral statement re garding thi s
requ i rement nor did he adva nce this argument t o the trial court at any time. T h us, he has failed to pre serve this issue for our review. See Te x. R. A pp. 3 3.1(a)

. Furthermore, w hile the trial court orally s tated that it was order ing Strau ghan to conti nue ps y chia tric treatment , th e pr otective order signe d by the trial court contains no such a requirement. We overrule Straughan ’ s second iss u e

. E. S ALE O F F IR E ARMS

I n his third issue, Straughan argues that the tr ial court abused its discretion when it or dere d S traughan to sell his f irearms because there is no authority in the Family Code allowing for such a n order

. T he Texas Family Code provi d e s that , in

a prot ective order, the court may prohibit the person fou nd to have committed family violence from pos sess in g a fire arm unless the person is a police offic er. Te x. Fam. Code Ann. § 85.002(b)(6 ). Straughan , however, f ailed to object to this
pro v i sion in the prote ctive order and did not advance this argument at th e trial
court. See Tex. R. A p p. P. 33.1 ( a)(1 )

. Th er e fore, Straughan failed to preserve this issue, and we overrule it. See Tex. R. A p p. P. 33.1 ( a)(1 ).

F. E VIDENTIARY R ULING
In his fourt h issue, Strau ghan argues that the trial court erred b y ex cluding evid ence regarding Girsch ’ s requests during her d ivor ce pr oceeding with Straug han that she be award ed Straughan ’ s dog . D uring Gi rs ch ’ s testimony, Straughan asked the question , “ Isn ’ t it true that you ’ ve i n itia ted these proceedings because you demanded the dog as part of the property in the divorce settl e ment ? ”11 Girsch ’ s att orney objected to the qu estion on the basis of improper commitment and relevance, and the tri al court sustained t he objection. On appeal, Str aughan argues tha t “ the in forma tion elicited by this question is relevant be caus e it g oes to the witness ’ s credibility as to her allegations against ” Straughan. To preserve erro r when evidence is e x c luded , the of fering party must inform the court of the su bstance of t he evidence by an offer of proof, unless the subs tance was apparent from t he context. Tex. R . App. P. 33.1(a ) ; Tex. R. Evid. 103(a)(2)

. Straughan did not make an offer of proof; thu s, h e failed to pre serve this issue for

our rev iew. See Tex. R

. App. P. 33. 1(a ) ; Tex. R. Evid. 103(a)(2)

. A dditionally , we

n ot e th at immedi ately after this question St rahan ’ s counsel asked : “ Ms . Girsch, are you fabricating these claims against your n ow ex
- husband simply to t ry and t a ke his service dog away from him? ” Gi rsch ’ s attorney did not object to this question, and Girsch answere d “ No. ”

We ove rr ule Straughan ’ s four th issue.

III. C ONCLUSION
The trial court ’ s protective order is affirmed.

/s/ Margaret “ Meg ” P oissant Ju stice

Panel consists of Justice s Jewell, Bourliot, and Poissa nt.