Affirmed as Modified and Majority and Concurring and Dissenting Opinions

filed December 15 , 2022

.

In The



## Fourteenth Court of Appeals

NO. 14

- 20

- 00696

- CV

JOSEPH BRYAN DESSENS , Appellant

V.
VICTORIA ARGEROPLOS , Appellee

On Appeal from the 280th Distri ct Court

Har ris County, Texas Trial Court Cause No. 2020

- 19658

M A J O R I T Y O P I N I O N Appellant Joseph Bryan Dessens ( “ Joseph ” ) appeals the trial court ’ s rendition of a lifetime protective order fo r stalking pursuant to former C o de of
Criminal Procedure 7A. In three issu e s, Joseph argues t he evidence is insufficient

to support (1) the finding that he engaged in behavior constituti ng stalking; ( 2) certain con ditions and restrictions imposed in the protective order; and (3) the award of attorney ’ s fees to ap pelle e Victoria A rgeroplos ( “ Victo r ia ” ) . For the reasons below, we modify the protective order and affirm as modified.2 B ACKGROUND Joseph and Victoria were married in 2013 and received a final decree of
divorce in A pril 2018. After the divorce, they had no s ubsta ntive c ontact for over a

year

.
In June 2 019, Joseph sent a text message to Victoria attaching an article with a note suggesting that Victoria ende d the ir relationship inste ad of helping Joseph
deal wit h hi s alc oh o lism

. Jo s eph also accused Victoria of slee ping with her “ coke
de a ler. ” Victoria responded onl y wit h: “ I ’ m not going to dignify that with a
response. ”

There was no contact between the two until March 2 1, 2020 , when Joseph sent the following email to Vict or i a an d sev er al of her fr iends and family me mb ers :
You started a n LL C with your coke dealer. Epic. Was it rape ? since he got you high on coke before y ’ all fucked while we were married? I have no clue how to classify you fucking him after he fed you drugs. Y o u ow e me $100k for tuit ion. $60k f or t he car

. $30k for the r ing. But instead you ’ re fucking a Chinese commie coke dealer. How does it feel be ing a traitor?

T he next day Joseph texted Victoria about cont acting her employer :
S tarting to sp am your w ork abo ut y ou h avin g an ll c with your coke de aler. You should n ’t be so reckless while representing a company. Call me a liar ? I will send them the hair I collected. It ’s been tested and its viable.
On March 23, 2020, Joseph emailed Victoria ’ s employe r with the following

messag e : “ My ex

- wi fe V ict oria [] works fo r you. She star ted a business with her
coke dealer. Drug test her. ” Victoria ’ s employer informed her about the email and
V icto ria filed for a pro tective order s ho r tly there after.
In July 2020, the trial court hel d a hearing on V ictoria ’ s application fo r a protective ord er

. The trial court granted the application and rend ered a final3

pr otective ord er on August 14, 2020

. Joseph requested findings of fac t a nd

c onclusions of law , which the trial court signed on Octobe r 13, 2020

. The findi ngs of fact only m ention the March 22, 2020 email as evidenc e supporting the protective order.

A NALYSIS Joseph raises three issues on appeal: (1) the evidence was legally and
fac tually insuf

ficient to prove that Joseph engaged in the offense o f s talking ; (2) t he evidence w as legally and factually insufficient to support certain conditions ordered by the trial court in the p rotective ord er ; and (3) the evidence was legally
and fa ctually insufficie nt to support the trial court ’ s award of at torney ’ s fees to
V ictoria

. O n appe l late review, a trial court ’ s findings of fact have the same force and effect as a jury ’ s verdict. A nde rson v. City of Se ven Points , 806 S.W.2d 791, 794 (Tex. 1991)

. I. Statutory B ackground

The tri al court issued the protective o rde r a gainst Jo seph in accord a nce with
Code of Criminal Procedure chapter 7A

. 1 The Code of Criminal Procedure g rants a trial co urt authority to issue a protect ive order “without regard t o the relationship
b etween the applic ant and the alleged offender” i f th e applica nt is a victim of certain crimes, including stalking

. See Act of May 1 0 , 20 11 , 8 2nd Leg., R.S., ch

. 1 3 5 , § 2 , 20 11 Tex. Gen. Laws 6 40 , 640 (repealed 2019)

. A trial court “shall issue

a protective order ” if it f

inds that “there are reasonable gro unds to b elieve that the

a p plicant is the victim of

. . . stalking

. ” See Act of May 1 0 , 20 11 , 8 2nd Leg., R.S.,
ch

. 1 3 5 , § 4 , 20 11 Tex. Gen. Laws 6 40 , 64 1 (repealed 2019)

. “ Stalking ” is a

1 Since the rendition of th e final protective ord er, the Texas legis lature enacted

non

- substantive changes to the Code of Criminal Procedure and placed the pr ovision s relatin g to prot ective o rders for stalking in Code of Criminal Proc edure ar t i cle 7B

. See Act of May 21, 2019 , 86 th Leg ., ch. 469, § 1.02 , 2019 Tex. Gen

. Laws , 1065, 1066

.4

criminal of

fense un der the Penal Code

. See Tex. Penal Code Ann. § 4 2.0 72.
A per s on commits the o f fense of stalking if that per son “ on more than one occasion and pursua nt to the s am e scheme or course of co nduct that is direc ted specifically at another pers on, knowingly e ngages in conduct ” th at , as relevant
here : (1) c ons ti tu tes the o ff ense of harassm e nt; (2 ) causes the other perso n

. . . t o feel harassed, annoyed, alarmed, abused, to rmen ted, embarr assed, or offended; and (3) would cause a reasonable person to

. . . feel harassed, annoyed,

a la rmed, abused, tormented, e mba rr as sed, or o ff ended

. Id

. A p erson commits the offense of harassmen t “ if, with int ent to ha rass, annoy, alarm, abuse, torm ent, or embarrass an other, the person : ”
(1) initiates comm unication and in the course of t he communicatio n makes a comment, request, suggest ion, or p ro posal tha t is

o b scene ;

* * * (7) sends repeated ele c tronic communi cations i n a manner reasonably likely to harass, annoy, alar m, abuse, torment, embarrass, or of fend another [.]

Id . § 42.07. The term “obsce ne” is defined in the harass ment s t atute as a communi cation “ c ontaining a patently of fensive description of or a solicitation to
commit an ultimate sex a ct, inclu ding sexual intercourse

. . . . ” I d . § 42.07(b) (3). The term “ electronic communicati on” is d efined in the statu te as inc luding, among
ot her things, commu n ications sent via electronic m ail a nd text messages. Id

. § 42.07(b)( 1)(A)

. Before the trial court can enter an order, it must hold a hea ring to det ermine5

“whether there are reasonable grounds t o b elieve that the applicant is the vic tim o f

. . . st alking

. ” See Act of May 1 0 , 20 11 , 8 2nd Leg., R.S., ch

. 1 3 5 , § 4 , 20 11 Tex.
Gen. Laws 6 40 , 64 1 (repealed 2019)

. II. Evidence Joseph Enga ged in Stalking or Harassment

In h is first issue, Joseph asserts the evidence was legally and fa ctually
insuffic ient to prove tha t he engaged in con duct constituting stalking. See Tex. Penal Code Ann. § 42.072.

A. Omitted Finding s of Fac t a nd Conclusions of Law
Asserting that the trial cou rt ’ s findings of fact and conclusi ons of law describe only a s ingle i nstance o f harassment or s t alking, Joseph argues that the final protective order is not support ed by legally or factually sufficient ev idence as
it does not establish a “ course of conduct ” as required by the Penal Code.

R ule of Civil P rocedure 299 s tates t he fo llow ing concerning th e import and review of findings of fact :

W hen findin gs of fact are filed by the trial court they shall form the basis o f the judgment upon all grounds of recover y and of defense embra ced therein. Th e judgment may not be su pported upon app eal by a presumed finding upon any ground of recovery or def ense, no
e lement of which has been included in the findings of fact; but when one or more element s thereof have been f ound by the trial court
, om itted u nreq uested elem ents, when su pported by ev ide nce, will be supp l ied by presumption in support of the ju dgm ent. Refus al of the court to make a finding requested shall be reviewable on appeal.

Tex. R. Civ. P. 299. The rule p lainly states that findin gs o f fac t “sha ll form the
basis of t he judg ment.” I d

. This does not mean that the trial court must make a
findi ng as to ever y element of a cause of action. See id

. So long as the trial court makes a finding as t o at least one element of a cause of action, thi s court may presume th e trial court made impl ied findings as t o the remaining elements. See id ;6

see also Cli nto n v. Gallu

p , 621 S.W.3d 848, 850 (Tex. App.

— Houston [14th Dist.] 2021, no pet .)

. Though Joseph co mplains on app eal tha t the tr ial court faile d to make all t he required findi ngs , he did not make t he trial co u rt aware of this omission by requesting additiona l findings

. Vickery v. Comm ’ n for Lawyer Discipline
, 5
S.W.3d 241 , 255

- 56 (Te x. App.

— Houston [14th Dist.] 1999 , pet. denied) ( “[A] request fo r a d ditional fi ndings is in the nature of an ob jec tion [.] ” ). “I n a bench
trial , the appellant may request a dditiona l findin gs on omitted elements to prevent them from being deemed on appeal. ” Id. at 254 ; see also Tex. R. Ci v. P. 298 ( “any

pa rty may file wi t h t he clerk of the court a r equest for speci fi ed additional o r amended findings or conclusions ”)

. J ose ph never req ue sted any additional or amended findings of fact. Therefore, we p resume the trial court ’ s omission is
in a dvertent and we are authorized by R ule 299 to pres ume the tria l court impliedl y made any findin g s, supported by the record, that are necessary to supp o rt its judgment. 2 Vi ckery , 5 S.W. 3d at 258 ; see also Tex. R. Civ. P. 299. T he trial court
made the fol l owing finding :
After almost two ye ar s po st the divo rce of the parties
, where t he re was nominal i nteraction

. A trivial meeting after the divo rce took pl ace to discuss the exchange of minor personal property after divorce
, [Joseph] engaged in the following behavior:

a

. After not sleeping f

o r 48

- hour perio d
, where Jos eph [] testified
, he was sufferin g from emotional problems

. On March 22 , 2020 at 4: 48

2 As discussed at length in Vi ckery
, app ellate courts pr esume the tr ial co urt im pl iedly

ma de find ings , sup ported by the record
, because public po licy supports t he val idity of judgment s. Vickery , 5 S.W.3d at 251 ( “ [ T] he presumption of val i d ity ex tends to judgmen ts derived with or without the benefit of a jury. In fact, the presu m p tio n o f validity is per haps e ven stronger in a bench trial where an expe rienced j u dge exe rcises the functions of a jury a nd is charged w ith the responsibility of as sessin g the credibilit y of the witness es, logically evaluating the evidence, rationally re s o lvi ng factual di sput es on the basis of such evidence, and correctly appl ying the l aw to t he facts ”). Only when it is cle ar that the omis sion was intentional , not in advert ent, does the pr esumption not ap ply. Id . at 252

- 53.7

a

. m ., Joseph [] forwarded the following text message to 7 individual persons wh o are being [Victoria ’ s] mo ther
, and the others were church

m e mbe rs ; Godsist er , childhood friend who att e nde d elementary

sc h ool with [Victoria]
, the chu rch member
, w ife and children interacted with [Victoria] on many [.]

T he findings of fact describe only one email sent by Joseph to Vict oria and her
clo se friends an d f

amil y. Because at least on e element o f the o ffense was fou n d by
the tria l court, we may supply the o mitted elements supported by the evidence. See
Tex. R. Civ. P. 299. We turn now to th e evide nce.
B. Standard of Review

When both legal and factual suffic iency chal lenges are raised on appeal, we

m ust fir st examine th e legal s ufficiency of the evidence. City of Houst on v. Co tton , 171 S.W.3d 541, 546 (Tex. App.

— Houston [14th D ist.] 2005, pet. denied). In conducting a legal su ff

iciency review , we must consi der the evid ence in the light
most favora bl e to the appealed or d er and indu lge every reasonable inference that

supp orts it. City of Keller v. Wilson
, 168 S.W.3d 802, 822 (Tex. 2005)

. The
evidence is l egally sufficient if it w ould enable reaso nable and fa ir

- minded peop le
to reach t he decision un de r review. I d

. at 82 7

. This court must credit favorable
evid ence if a reasonable tr ier of fact could, and disregard contr ary evidence unless
a reasonable trier of fact c ould not. I d

. The trier of fact is t he so le jud ge of the
witnesses ’ cre dibil ity an d t he weight to be giv e n their testimony. Id

. at 8 19

. This court may sustain a legal suf ficiency challenge onl y if the record
reveals one of the following: (1) the complete a bsen ce of a vit al fact; (2) the court
i s barred by rules of law or of evidence f ro m givi ng weigh t to t h e only evide nce offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no
more than a scintill a; or (4) the evidence establishe d co nclusi vely the opposite of
the vita l fact. I

d

. at 810

. When the evidence o ff e red to prove a vita l fact is so8

we ak as to do no more than cr eate a mere surmise or suspicion of its existence, the
evidence is less than a scintilla and, in legal effect, is no e vide nce. Se e Ford Motor
Co. v. R idgway
, 13 5 S.W.3d 598, 601 (T ex. 2004).

In r eviewing factual s u fficiency, we m ust examine the entire recor d, considering both the evidence in favor of and contrary to the challenged findings.
See Mar

. Overseas Corp. v . El lis
, 971 S. W.2d 402, 406

- 07 (Tex. 1998); Cai n v. Bain , 709 S.W. 2d 175, 176 ( T ex. 1986) (per curi a m )

. We may set aside the ve rdict for factual sufficiency only if it is so contrary to the overwhelming w eight of the
eviden ce as to be clearly wrong and unjust. See Mar

. Ov erseas Corp

. , 971 S.W .2d
at 407

. C. Sufficiency of the Eviden ce Joseph and Vict oria were the only witnesses to te stify at the hearing.
Victoria testified that nearly two years afte r her divo rce from Joseph , she received the following email from J oseph :
You started an LLC wit h your coke dealer. Epic. Wa s it rape ? s ince he got you high on coke before y ’ all fucked while we were married? I have no clue how to classify you fucking him after he fed you drugs. Y o u ow e me $100k for tuit ion. $60k f or the car

. $30k for the ring. But instead you ’ re fucking a Chinese co mm ie coke dealer. How does it feel be ing a traitor? The email cop ied several of Victor ia ’s friends a n d family members as recipients

. When asked if this email “ alarm[ed] ” her, Victoria replied “ [v ]ery much so. ”

A ccording to Victoria, the fo llowing day J oseph sent her a tex t message stating t hat he was going to contact her e mployer and tell them that Victoria

“ started an LLC with a coke dealer. ” He also threaten ed to s ubmit a v iable hair

samp l e of her s for testi ng. Joseph did
, in fact
, send an email t o Victoria ’ s employer s ta ting they should drug test h er. Victo ria testified that this email to her9

employer made her “ concerned about losing [her] job

. ”

These three communications tak en together illustrate a cour s e of conduct, o n more than on e occasion
, t hat was directed spe c i f ically at Victori a by Joseph that

cause d Victoria to feel harassed, annoyed
, and alarmed and woul d cause a reasonable person to feel harassed
, annoyed
, and alarme d. See Tex. Penal Code
Ann. § 42

. 0 7 2

. The se email s and t ext co mmunic at ions also con stit ute the o ffense
of harassment as the evidence at the hearing r eflected that Joseph sent repeated
electronic communications in a man n er reas onably likely to harass, ann oy, alarm, abuse, torment, em barrass , or offend V ic toria

. See id . § 4 2. 07. Vi e wing the
evi d ence in th e light most favorable to the tri al court ’ s order, we hold Victoria ’ s
test imony, along with the electronic com munications in evidence
, provided more
than a scintilla of evide nce to s upport the trial court ’ s find ings and imp os ition of a protectiv e o rder.

W e turn next to Joseph ’ s fac tual s ufficiency challenge

. While J oseph testified during the hearing, he did not o ffer any testimony controverting Victoria ’ s version of the event s or t h e electr onic communications

. He admitted t hat he sent
the comm u nication s , t hough he disputed tha t his motiva tion was to harass, annoy
, or alarm Victoria

. He testified that he tho ught con tacting her employer might help
her to g et into a rehabilitation pro g ram. He st ated that when he sent the

com m uni cations he had not slept in sever al days and was fee ling stre ssed and
isolated due to the COVID

- 19 p andemic and illness in his family

. As the s ole judge of the credibility of the w itnesses, the trial court w as f ree
to acce pt o r reject Vi ctoria ’ s unco n trove rted testimony
, a s well as Joseph ’ s testimony

. See City of Keller
, 168 S.W.3d at 8 19 ; In re Marriage of Moncur , 640 S.W.3d 309, 317 (Tex. App.

— Houston [14th Dist.] 2022, no pet.)

. T he evidence
is not too wea k to support the tr ial c ourt ’ s f indings t h at Joseph engaged in c onduct10

constituting harassment and stalking
, nor are the findi ngs so against the overwhelming weight of the evi dence as to be clearly wrong or manif estly unjust

. W e conclude the evidence is f actually sufficien t to su ppo rt th e findin g s in the protective or d er

. Jose ph also complains the trial court did not identify the speci fic
subsection (s) of the harassment statute i t fou nd he had vi olated in either i ts oral

re ndit ion or in its fi ndings of fac t and conclusions of law. However , Josep h ’ s

ar gument is premi s e d on the assumption that the trial court ’s f ind i ngs of fact must ident ify each subsection of the statute viola ted
, and he offer s no lega l a uthorit y f or this argume nt. The trial court was requ ired to find whether th ere were rea sonabl e
g rounds to beli eve t h at the applicant was the victim of stalking and
, i f the court
made such a finding
, it was required to issue a p rotective order

. See Act of May
1 0 , 20 11 , 8 2nd Leg., R.S., ch

. 1 3 5 , § 4 , 20 11 Te x. Gen. Laws 6 40 , 64 1 (repe aled 2019)

. T h e fina l p r otective or d er alrea d y incl u de d a finding that Joseph engaged in

“ conduct directed specifically to [Victoria] that const itutes harassment and s talking
as defined under Tex as P e nal Code § 42.0 7 & 4 2. 07 2

. ” Therefore, it c ontain ed th e findings req u ired by s tatute. The tria l court w as no t r equired to m ake a fin d in g on
every sub

- par t of the statute violated. S ee Nicholas v. Envtl. Sys. (Int ’ l) Ltd. , 4 99 S.W.3d 888, 894

- 95 (Tex . App.

— Housto n [ 14t h Dist.] 2016 , pet. d enied ) (“T he

t rial c our t is not r e quired to s et out i n d etail ever y re a son or t heory by wh ich it
arriv ed at its final conc lus ion s. Nor is the tria l court required to accept amended findings and conclusions th at merel y resol ve evi den tia ry issues or are othe rwise

unne ces sary

. ”)

. We overrul e Joseph ’ s first issue

. III. Conditions o f the P rotective Order
In his second issue, Joseph challenges th e following conditions of the11

protective order : (1) the lifetime duration of the protective order; (2) the lifet ime prohibition on pos sessi on of firearms ; (3) the requirement t hat Joseph attend a battering inter vention and protection p rogram ( “ BIPP ” ); (4) the requirement that Joseph submit to a psychological evaluation ; and (5) the requirement that Joseph
submit to an alcohol evaluation. I n response , Vict o ria argues that the t r ial court had discretion to impose all challenged condit ions , as well as th e attorney ’ s fees,
and that the trial court ’ s de cision should be affirmed.

A. Standard of Review

We rev iew the condition s included in a protec tive order for an a b use of
discretion. I

n re Doe , 19 S.W.3d 249, 253 (Tex. 2000) (“The abuse of discre tion
standard a pplies when a trial court has discretion either to grant or deny relief
based on its factual determi nations.”); see Act of May 17, 2 013 , 8 3rd L eg., R.S.,
ch

. 760 , § 2 , 2013 Tex. G e n. Laws 19 28 , 1928

- 29 (r epealed 2019 ) ( “ [i] n a protec tive order issued under t his subchapte r, the court may

. . . order the alleged
offender to take action as specified by the court that the c ou rt determines i s

necessar y or appropria t e to prevent or re d uc e the likelihood of future harm ” ) (emphasis added) ; see generally Rodri guez v. Doe , 614 S.W.3d 380, 385

- 86 (T ex. App.

— Houston [14th Dist.] 2020, no pet.) (noting that Family Code section
85.022 (b)
, which also gov erns p ro tective orde rs , gives the trial cour t discretion to prohibit certain conduct).

A trial court abu ses its discreti on if it acts arbitrarily or unreason ably or without reference to guiding rules or principle s. Berkel & Co. Contrac tors, Inc. v.
Lee , 612 S.W

. 3d 280, 287 (T e x. 2020). Under an a b use of discretion standard , the legal and factual sufficiency of the evidence are relevant factors in determining whether the trial court abused its discretion, but they are not independent gr ounds
of error. See Zeifma n v. Michels
, 2 1 2 S.W.3d 582, 587 (T e x. App.

— Austin 2006,12

pet. d enied); see also Cox v. Walden , No. 13

- 20

- 00283

- CV, 2022 WL 120014, at
*5

- 6 (Tex. App

. — Corpus Christ i Jan. 13, 2022, no pet.) ( mem. op.). A trial court
does not ab use its discretion w hen some eviden ce rea s onably supports its d e cision.
Butnaru v. Ford Motor Co ., 84 S.W.3d 198, 211 (Tex. 2002).

B. Duration of the Protective Order

Jos eph a rgues the e vidence was factually insufficient to support the lifetime
durati on of t he protective order

. H e ack nowledges tha t while the statute al l owed
the trial court to i ssue the pr otective order for his li fetime, it was manif estly unjust
to do so u nder the fact s o f the case.

The Code of Criminal Procedure allows a trial court, when t he court has
found reasonabl e grounds to b elieve the applicant i s the victim of stalking
, to i s sue

a protecti ve order “for the duration of the live s of the offender and victim

. . . or for any shorter period stated in the order

. ” See A ct of May 19 , 2 011 , 82nd Leg., R.S.,
ch

. 238 , § 2 , 2011 Tex. G e n. Laws 280 , 281 (re p ealed 2019). The trial court thus had statutory authority to make the protective ord er issued in this case effective for Joseph ’ s li fetime , or for any shorter period of time in its dis cretion

. See Straughan
v. Girsch
, No. 14

- 20

- 007 6 3

- CV , 2022 WL 2977049 , at *3 (Tex. App.

— Houston [14th Dist.] July 28, 2022, no pet. ) (mem. op.)

. Victoria requ e ste d th e protective order be granted for the duration of
Jos eph ’ s life time because she was bein g h arassed and stalked two years a fter her
d i vorce. She explained to the court that she did not believe that a short time period

wou l d be enough. T he t rial court agreed and set the duration of the protective
order f or Joseph ’ s lifetime

. In contra st to a pr otective order issue d pursuant to the
Fam i ly Code which require s certain findings be made to su pp o rt a protective order exceeding t wo years in dur a tion
, there wer e no factors or findings r equired constraining the trial court ’ s discretion. C om p are A ct of M ay 19 , 2 011 , 82nd Leg.,13

R.S., c h

. 238 , § 2 , 2011 Tex. Ge n. Laws 280 , 281 (repealed 2019) with Tex. Fam.
Code Ann. § 85.025 (a), (a

- 1)

. Therefore
, we conclud e t his decision was within the
trial court ’ s author ity and the trial court had sufficient evidence o n which to

ex ercise its discret ion

. C. Posse s sion of a Firearm

Und e r the applicable statute, the trial court was permitted to prohibit the respondent from “ possessing a fire arm ”

. See Act of May 17, 2 013 , 83rd Leg., R.S., ch

. 760 , § 2 , 2013 Tex. Gen. Laws 19 2 8 , 1928

- 29 (repealed 2019 ). Pu rsuant

to t hat pro vision, the tr i al court prohibited Joseph from “ posse ssing a fire arm or ammunition ” for th e duration of his life. Challe nging that condition on appeal, Joseph points out that the evidence at t rial did not s how a history of physical harm, bodily in j ury, or threats of vi o lence between hi mself and Victoria. 3
We agree with Joseph. The record shows that Jo se ph never physical ly
harmed or threatened to physical ly harm Victoria during their relationship or after
th eir d ivorce

. The record also s hows that J o seph never physicall y harmed or
threatened to harm Victoria ’ s family. Moreover, t he record does not con tain any

ev idence sh owing that Joseph has harmed or threaten ed to harm any person with a firearm. Rather, as the evidence discussed above s hows, the a c tions at issue were l imited to electronic communications. Th is evidence alone does not warrant prohib iting Joseph from possessing a firearm or a mmuni tion for the duration of his
life.

3 In his appellate br ief, Joseph mentions in pas sing a nd with out briefing that the lifetime prohibition on posses s i ng a firearm infring es on his rights under th e Second Amendment to the U nited State s Cons titution. See U.S. Const. ame nd . II

. However, because Joseph did not ra ise this comp laint in the t rial court, h e did not preserve the issue for appellate review. S ee T ex. R

. App. P. 33.1(a); see also In re L.M.I. , 119 S.W.3d 707, 710

- 11 (Tex. 2003) (hol ding that, to preserve a complai nt for appellate review , including a con s titutional complaint, the p arty m ust pre sent the complaint to the trial court and obtain a r u ling thereon).14

Therefore , the trial court a b used its discretion when it o r dered that J oseph

was pro hi bited from po ssessing a firearm or ammuni tion. See In re Doe , 19
S.W.3d at 253

. We sustain Joseph ’ s second issue in part as to th is condition of the protecti ve order

. D. Psychological Ev a luation a nd Alcohol Assessment
Joseph al s o argues in his seco nd issue th a t the evidence was factually and legally insufficient to su ppor t the condition s in the protective order requiring him to participate in ( 1 ) a psycholo gical evaluation, and ( 2 ) an alcohol asses sme nt

. He acknowledges it w as l egally p erm issibl e for the tria l court to order him to submit to a psychological evaluation, but argues th e evidence presented at trial was so weak

a s to make it manifestly unjust. We disagree.
The requireme nt that an alle ged offe nder submit to a psycho l ogical

e val uation or alcohol as s essment is not specifically enu merated in article 7A. See
Act of May 17, 2 013 , 83rd Leg., R.S., ch

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

- 29 (repealed 2019 ). However, the tria l court had the power to require Joseph

to p articipate i n such evaluations s o long a s the trial court determine d it wa s

neces sary or appropriate to prevent or reduce future harm. See id

. The trial court ’ s discretion to enact conditions in the prote ctive order is lim ited only by the requir e ment th a t such cond itions must be “ nece s sar y or appropriate to prevent or reduce the likelihood of future harm. ” Id

. Therefore, t he trial court ’ s determination or exercise of discretion should be supported by e vidence indicating

t he appropriate ness or necessity of the cond ition. See id

. The eviden ce at the hearing revealed that Joseph was str uggling with
is olation during the CO VID

- 19 pa n demic , his father ’ s declining cognitive health
, and his sister ’ s cancer diagnosis. Victoria t estified that Jos eph had pr oble m s with
alco hol during their mar r iage , even though Joseph denie d he was drinking at the15

time he sent the electronic message s. Though Josep h claims there was no evidence
at the hearing tha t he had any mental health diagnoses, the lack of a n official
d i agno s i s does not negate Joseph ’ s own test i mony t hat when he sent the electronic
communic atio ns to Victoria it was a stressful ti me and he was “ going throu gh a
lot. ” Joseph ’ s conduct

— which the trial court found to constitute stalking

— also
raises the is sue o f J osep h ’ s psycholo gical state. Theref o re, th e tri al court received
sufficient evidence at the hearing to exercise its discretion in req uiring Joseph t o submit to a psychological evaluation , and such a condition was not contrary to the overwhelming we ight of the evi den ce or clearly wrong.

Si m ilar ly, Jos eph argues there was no evidence presented at the hearing that
he had consumed alcohol since the end of his marriage to Victoria. He also argues
there w as no e vidence received at t he hearing that alcoh ol was a c ontributing factor
in sending th e ema il commu nication to Vic toria. Therefore, he argues there was no evidence supporting the trial court ’ s finding that his participati on in an alcohol assessment was necessary to preven t stal king. How ever, given t h e e vide nce before

t he cou rt reflecting t ha t Joseph had struggled with a l cohol or alcoholism in the

r ecent past , as well as Victoria ’ s testim ony that his ab usive communicatio ns post

- divorce escalat ed from her e xperience during their marriage, we conclude th e
t rial court recei ved sufficient evide n ce a t the hearing to exercise its discretion in requiring Jos eph to submit to a n alcohol assessment as necessary t o preve nt future
harm

. We o v er rule Josep h ’s challenge to the conditions in th e protective order that
h e s ubmi t to a psych ological evaluation a nd a lcohol assessment

. E. Battering Intervention and Prevention Program ( “ BIPP ” )
Joseph further argues the evi d ence was legally and factua lly insufficient t o

su pport the condition in the protecti ve order requiring him t o p articipate in a BIPP16

because there w a s no evidence at trial reflect ing a history of physical harm, bodily injury
, or threa ts of violence betwe e n Josep h and Vi ctoria. J oseph argues the 1 8

- week p rogram was ordered by t he tria l court witho ut any basi s in t h e evide nce

. We agree. BIPP is a pr o gram created by Texas statute to provide

“ education al services and intervention designed to help the b atter ers stop t h eir
abusive behavior. ” See Tex. Code Crim

. Proc. Ann. art. 42 .141 § 1 (7)(B).

“ Batterer ” is d efine d as “ a person who commits rep eated act s of violence or who repeatedly threatens violence against another ”

. Id . § 1 (1).
But here, the record is devoi d of any evidence showing that Joseph has

enga ged in acts of physical v iolence or ha s threatened physi cal v iolence against

ano ther. Without any e v idence showing a nexus between the actio ns a t issue and
BIPP ’ s a ims, we conclude that the imposition of this condit ion constitutes an abuse
of direction. See In re Doe , 19 S.W.3d at 253

. We sustain Josep h ’ s s econd issue in part and remove t he condition of the protecti ve order requiring him to participate in a BIPP

. F. Attorney ’ s Fees

Finall y, Joseph challenges the trial court’s award of attorney’s fees and
raises two argume nts : (1) the Code of Criminal Procedu re do es not provide for the

awar d of attorne y ’s f

ees in an application for protective order under article 7A; and (2) the evidence was not legally and factually sufficient to support the award.
Victoria argues that Jos eph’ s challenge to the award of the at tor ne y’s fees
should be reviewed under the a b use

- of

- discretion standard instead of under the sufficiency

- of

- the

- evidence standard. Relying on Bocquet v. Herring , Victoria argues that an award of attorney’s fees is rev iewe d under the abuse

- of

- discretion

st and ar d. 972 S.W.2d 19, 20 (Tex. 1998). How e ver, Bo cquet discusses the17

limitations on the discretion of a trial court to award attorney’s fees and one of those requirements i s that attorne y’s fees must be reasonable and n ecessary. Id . at 21. There also must b e sufficient evidence to supp ort the a w ard of attor ney’s fees as reasonable and necessary. Id

. This inquiry also requires a review of both the
discretion of the court and the eviden ce supporting the award. Id

. Co d e of Criminal Procedure Chapter 7A did n ot contain any provision
allo wing for t he recovery of attorney’s fees. However, Chapter 7A provided that Family Code Title 4 applies to stalking protective orders unless the provisio ns of
the two statutes conflict. See Act of May 20, 2003, 78th Leg ., R. S ., ch. 836, § 1, art. 7A.04, 2003 Tex. Gen. Laws 2622, 2 623 (repealed 2019)

. Family Code
ch apter 81 provide s the trial court with discretion to awar d attorney’s fees against the party found to have committ ed family violence. Tex. Fam. Code Ann. § 8 1.005

. Because he argues the trial court di d not make a finding that he had
commi tted family violence, Joseph ass erts that Chapter 81 does not apply.
How ever, Joseph did not object in the trial court to the trial court’s discretion to award attorney’s fe es an d raises only a sufficiency ch allenge o n appeal. Therefore,
we conclude that Joseph has waived this argument and we need not address it. See Tex. R. Ap p. P. 33.1. We turn now to the sufficiency of the evidence sup porti ng the award of attorney’s fees , whi ch may be raised for the first ti me on app e al. See Tex. R. Civ. P. 324(a), (b). At the hearing, Victoria’s lawyer, Rick Ramos, testified that while
he char ges an hourly rate for his services, he only charged Victoria a fla t fee of $2,500. He stated the amount of work he performed exceeded $2,500 in value, but he was only seeking a reas onable and necessary amount for filing the protective
order. Ramos offer ed no estimate of the number of hours devoted to the case or
the t a sks in which he engaged. H e als o did not introduce any bills or fee18

statement s into evidence.

An award of attorney’s fees must be support ed by evidence that the fees are
reasonab le and necessary. See Rohrmoos Venture v. UTSW DVA Healthcare, LLP
, 578 S.W. 3d 469, 484 (Tex. 2019) (“W hen f ee

- shifting is authorized, whether by

statute o r contract, the party seeki ng a fee award must prove the re asonableness and necessity of the request ed attorney’s fees.”). Rohrmoos established that the lodestar analy sis is to be applied in any situatio n in which an objective calculation
of rea sonable w o rk times a reasonable rate can be employed. Id . at 497

- 98. Generally, while contemporaneous billin g records are not required, legally
sufficient evidence to establish a reason able and necessary fee need s to include a description of the particul ar servic e s performed, the identity o f each attorney who and approxim ately when that attorney performed the se rvices, the reasonable amount of time required to perform the services , and t he reasonable hourly rate f or

ea ch attorney performing the services. See id

. a t 497

- 98, 501

- 02, 502

- 03. This base lodestar figure consti tutes a presumptively reasonable and nece ssary fee for prosecuting or defending the prevailing party’s claim thro ugh t he litigation

process. Id

. at 4 98

- 502 (base lodestar accounts for mo st releva n t considerations set
forth in Arthur Andersen & Co. v. Perr y Equip. Corp. , 945 S.W.2d 812, 818 (Tex. 1997), and can be enhanced or reduced accordingly).

Without details abou t th e work done, how much time was s pent on the tasks, and how he justifi ed the fl a t fee charged in Victoria’s case, we conclude that
Victoria ’s attorney’s testimony “lacks the substa nce required to uphold a fee award” and thus is legally insufficient. See id

. at 504

- 05. Therefore, we sust ain Joseph ’ s second issue in part as to the aw a rd of atto rney’s fees. Because attorney’s fees for family

- violence protective orde rs are not mandatory, we cannot remand for a redetermination of those fees and modify the prot ective order accordingly. See19

I n re K.A.M.S. , 583 S.W.3d 335, 350 n. 10 (Tex. A pp.

— Hous ton [14th Dist.] 2019, no pet.) (collecting cases addressing attorney’s f ees in suit affecting the parent

child relationship).

We susta in Joseph ’ s second issue in part a s to t he award of attorney’ s fee s

. C ONCLUSION Having sust ained Joseph ’ s second issue in part, we modify the final prote ctive order to delete the following condition ordering that Joseph is:

9. Prohibited from possessing a firearm or ammunition, u nless Respon dent is a peace officer
, as de fi ned by sec tion 1.07 of the Te xas Pena l Cod e, a c tively engaged in employment as a sw orn, full

- time paid emp loyee o f a state agency or political subdivision.

We also delete the following paragraph ordering that Joseph attend a B IP P:

IT IS ORDERED that Res p onde nt regis ter to attend a battering i nt ervention a nd prevention program accredited under article 4 2.141 of the Texas Code o f Criminal Procedure with AVDA ( Aid to Victims of D omestic Violence). Respondent is ORDERED to file pr oof of registration with th e Cou rt on or before August 17, 2020 at 5: 00 PM.

Fi n ally, w e delete th e p or t ion of the f inal protective order “ aw arding two thous and
and five hundred dollars ( $2,500 ) as reasonable attorney ’ s fees for the services of
Ricard o L

. Ramos ” an d modify the prot ect ive order to remove the entire paragraph
addressi n g the award of a ttorney ’ s fees. 4 We aff irm the final protective order as

4 The p aragraph to be str uck is as follows:
Atto rney’s Fe es The Court finds that Joseph [] s h ould be assessed two thousand and f ive hundred dollars ( $ 2 , 500 ) as reasonable att orne y ’ s fees fo r the s ervices of Ricar do L. Ramos. IT I S ORDERED that Ricardo L

. Ramos, 2001 Kirby Drive, S uite 340, Houston, Texa s 27019, Harris County, Texas is awarded judgment of two th o usand and five hundr ed dollars ( $2 ,500 ) for legal services render ed

. The jud gme nt , for w hich let executi on issue, is awa rded agai n st J oseph []. The amount collected under th is judgment shall be pa id to Ricardo L. Ramos on or20

modi fied. See Tex. R. App. P. 43.2(b).

/s/ Meagan Hassan J u stic e

Pan el con sists of J ust i c e s Wise
, Spain
, and Has s an (Spain, J., concurring and dissenti n g )

.

before the sixtieth day after t he date this order i s signed by cash, LawPay
, cre dit card payme nt, cashier ’ s c hec k, or m oney order

.