                                                                             ACCEPTED
                                                                         03-15-00270-CV
                                                                                 7731813
                                                              THIRD COURT OF APPEALS
                                                                         AUSTIN, TEXAS
                                                                    11/6/2015 6:06:05 PM
                                                                       JEFFREY D. KYLE
                                                                                  CLERK
                    No. 03-15-00270-CV
__________________________________________________________
                                                     FILED IN
                                              3rd COURT OF APPEALS
               IN THE COURT OF APPEALS            AUSTIN, TEXAS
                THIRD JUDICIAL DISTRICT       11/6/2015 6:06:05 PM
                    AT AUSTIN, TEXAS            JEFFREY D. KYLE
                                                      Clerk
__________________________________________________________

                   SUZANNA ECKCHUM
                        Appellant

                             V.

                   THE STATE OF TEXAS
                          Appellee
__________________________________________________________

     ON APPEAL FROM THE COUNTY COURT AT LAW 2,
     COMAL COUNTY, TEXAS, CAUSE NO. C-2014-1690C,
  HONORABLE CHARLES A. STEPHENS, JUDGE PRESIDING
__________________________________________________________

                  BRIEF FOR APPELLEE
__________________________________________________________

                                                   Jennifer Tharp
                                         Criminal District Attorney

                                                                 By
                                              Nicholas D. Robinson
                                                    SBN: 24067844
                                                         Prosecutor
                                   150 N. Seguin Avenue, Suite #307
                                                     (830) 221-1300
                                                 Fax (830) 608-2008
                                        New Braunfels, Texas 78130
                                     E-mail: robinn@co.comal.tx.us
                                              Attorney for the State

                 Oral Argument Is Requested
                      Identity of Parties and Counsel

               Attorney for the Appellant, Suzanna Eckchum

For the Appellant at Hearing            For the Appellant on Appeal
Lynn Berry Morris                       Mysha Lubke
P.O. Box 1343                           Baker Botts L.L.P.
Wimberley, TX 78676                     98 San Jacinto Blvd., Suite 1500
                                        Austin, TX 78701
                                    Phone: (512) 322-2500
                                  Fax: (512) 322-2501
                                  E-mail: mysha.lubke@bakerbotts.com

                  Attorneys for the Appellee, Hal Ketchum

For the State at Hearing                 For the State on Appeal
Nicholas D. Robinson                     Nicholas D. Robinson
Prosecutor                               Prosecutor
COMAL COUNTY CRIMINAL                    COMAL COUNTY CRIMINAL
DISTRICT ATTORNEY’S OFFICE               DISTRICT ATTORNEY’S OFFICE
150 N. Seguin Avenue, Suite 307          150 N. Seguin Avenue, Suite 307
New Braunfels, Texas 78130               New Braunfels, Texas 78130
Telephone: (830) 221-1300                Telephone: (830) 221-1300
Facsimile: (830) 608-2008                Facsimile: (830) 608-2008
Email: robinn@co.comal.tx.us             Email: robinn@co.comal.tx.us
SBN: 24067844                            SBN: 24067844




                                    ii
                                        TABLE OF CONTENTS

Index of Authorities ..................................................................................................iv

Statement of Facts ...................................................................................................... 1

Summary of the Argument....................................................................................... 18

Standard of Review .................................................................................................. 21

Argument.................................................................................................................. 24

Prayer ....................................................................................................................... 58

Certificate of Service ............................................................................................... 59

Certificate of Compliance ........................................................................................ 59




                                                              iii
                                   INDEX OF AUTHORITIES
Statutes:

Tex. Crim. Pro. Code. Art. 7A.04 ............................................................................ 54

Tex. Crim. Pro. Code. Art. 7A.05 ......................................................................47, 56

Tex. Crim. Pro. Code. Art. 7A.07(a) .................................................................47, 56

Tex. Fam. Code Ann. §82.008 ...........................................................................51, 52

Tex. Fam. Code Ann. §82.041 ................................................................................. 53

Tex. Pen. Code Ann. §6.03(b) ................................................................................. 26

Tex. Pen. Code. §25.07 ................................................................................43, 44, 46

Tex. Pen. Code Ann. §42.072 .................................................................................. 25

Tex. R. App. P. 33.1(a)(1) .................................................................................23, 40

Tex. R. App. P. 33.2(e)(1) ...........................................................................23, 49, 57

Tex. R. Civ. P. 301 ................................................................................................... 53

Tex. R. Civ. P. 322 .......................................................................................23, 40, 41


Cases:

Allen v. State, 218 S.W.3d 905 (Tex. App.—Beaumont 207, no pet.) ..............26, 31

BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789 (Tex.2002) ................ 23

Champagne v. Gintick, 871 F. Supp. 1527 (D. Conn. 1994) .............................47, 48

City of Keller v. Wilson, 168 S.W.3d 802 (Tex.2005) ............................................. 22
Clements v. State, 19 S.W.3d 442 (Tex. App.—Houston [1st Dist.] 2000, no
pet.).....................................................................................................................24, 45

Cohen v. California, 403 U.S. 15 (1971) ...........................................................24, 45

Connell v. Town of Hudson, 733 F. Supp. 465 (D.N.H. 1990)................................ 45

Ex Parte Chavez, 371 S.W.3d 200 (Tex. Crim. App. 2012) .............................49, 50

Ex parte Ghahremani, 332 S.W.3d 470 (Tex. Crim. App. 2011) .....................49, 50

Franklin v. Benton-Elam, 06-13-00126-CV, 2014 WL 1722165 (Tex.
App.—Texarkana Apr. 30, 2014, no pet.)(not designated for publication) ......37, 38

Garcia v. State, 212 S.W.3d 877 (Tex. App.—Austin 2006, no pet.) ..................... 46

Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949) .................................. 47

GTE Mobilnet of S. Tex. Ltd. P'ship v. Pascouet, 61 S.W.3d 599
(Tex.App.-Houston [14th Dist.] 2001, pet. denied) ...........................................22, 33

Hansen v. State, 224 S.W.3d 325 (Tex. App.—Houston [1st Dist.] 2006,
pet. ref'd) ............................................................................................................27, 28

Hart v. State, 89 S.W.3d 61 (Tex.Crim.App.2002) ...........................................26, 27

Heidelberg v. State, 144 S.W.3d 535 (Tex. Crim. App. 2004) ............................... 42

Hutton v. State, 313 S.W.3d 902 (Tex. App.—Amarillo 2010, pet. ref'd) .............. 32

In re L.M.I., 119 S.W.3d 707 (Tex. 2003) .........................................................23, 40

Kissman v. Bendix Home Sys., Inc., 587 S.W.2d 675 (Tex. 1979) .......................... 55

Lancaster v. Lancaster, 01-12-00909-CV, 2013 WL 3243387
(Tex. App.—Houston [1st Dist.] June 25, 2013, no pet.)(not
designated for publication) ..............................................................23, 40, 48, 49, 57

Lewis v. S. S. Baune, 534 F.2d 1115 (5th Cir. 1976) ............................................... 47


                                                               v
Long v. State, 931S.W.2d 285 (Tex. Crim. App. 1996) ....................................24, 45

Lozano v. Lozano, 52 S.W.3d 141 (Tex.2001) ........................................................ 22

Mansions in the Forest L.P. v. Montgomery Cnty., 365 S.W.3d 314 (Tex.
2012) ..................................................................................................................23, 40

McGowan v. State, 375 S.W.3d 585 (Tex. App.—Houston [14th Dist.]
2012, pet. ref’d) ..................................................................................................26, 33

Moritz v. Preiss, 121 S.W.3d 715 (Tex. 2003) ........................................................ 42

Ortiz v. Jones, 917 S.W.2d 770 (Tex.1996) ............................................................ 22

Ploeger v. State, 189 S.W.3d 799 (Tex. App.—Houston [1st Dist.]
2006, no pet.) ............................................................................ 24, 28, 30, 31, 45, 46

R.A.V. v. City of St. Paul, Minn., 505 U.S. 377 (1992)............................................ 47

Riley v. State, 01-95-01020-CR, 1997 WL 72013 (Tex. App.—Houston [1st
Dist.] Feb. 13, 1997, pet. ref'd)(not designated for publication) ............................. 57

Sabine Offshore Serv., Inc. v. City of Port Arthur, 595 S.W.2d 840 (Tex.
1979) ........................................................................................................................ 50

Siefkas v. Siefkas, 902 S.W.2d 72 (Tex. App.—El Paso 1995, no writ) ................. 50

Smith v. Martens, 279 Kan. 242 P.3d 28 (2005)...................................................... 47

State for Prot. of Cockerham v. Cockerham, 218 S.W.3d 298 (Tex. App.—
Texarkana 2007, no pet.).......................................................................................... 53

Swain v. State, 181 S.W.3d 359 (Tex. Crim. App. 2005) ........................................ 42

Teague v. State, 06-14-00053-CR, 2015 WL 2236642 (Tex, App.—
Texarcana May 13, 2015, no. pet. h.) ................................................................27, 31
Teel v. Shifflett, 309 S.W.3d 597 (Tex. App.—Houston [14th Dist.] 2010, pet.
denied) ...................................................................................................................... 56


                                                               vi
Townsend v. Collard, 575 S.W.2d 422 (Tex. Civ. App.—Fort Worth 1978,
no writ) ...............................................................................................................23, 40
Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328 (Tex.1998) .................. 22

Valdez v. Valdez, 930 S.W.2d 725 (Tex. App.—Houston [1st Dist.] 1996, no
writ) .......................................................................................................................... 23

Other Authorities:

U.S. Const. amend. I. ............................................................................................... 24




                                                               vii
                         STATEMENT OF FACTS

   A. Initial Application for Protective Order:

      On December 16, 2014, the State filed an Application for Protective Order

on behalf of Mr. Hal Ketchum. CR 4. In the application, he was named as a

“victim of stalking,” and the front page of the application stated that there was a

“clear and present danger of stalking if the order was not granted.” Id. The first

paragraph of the application also stated that the order was being sought pursuant to

Chapter 85 of the Texas Family Code. Id. Mr. Ketchum provided a signed affidavit

stating that he was a victim of stalking for the past fifteen years and that he had a

prior “restraining order” against Suzanna Eckchum out of Tennessee. Id. at 8. The

court issued a Temporary Protective Order prohibiting Suzanna Eckchum from

“committing stalking” against Mr. Ketchum. Id. at 10.


   B. Hearing on Final Protective Order:

      On January 16, 2015, a hearing on the Final Protective Order was conducted

before the Honorable Judge Charles A. Stephens of the County Court at Law 2,

Comal County, Texas. 2 RR 1. At the hearing, attorney for Appellant, Patty

Morris, stated the State was pursuing a Stalking Protective Order, as opposed to a

family violence protective order. Id. at 6. The trial court informed Ms. Morris that

it understood the type of order being sought, and that the application, filed on


                                         1
December 16, 2014, stated that it was in fact a Stalking Protective Order. Ms.

Morris noted that the application included language referring to Chapter 85 of the

Texas Family Code, giving rise to possible confusion. Id. at 8. The Court pointed

out there was only one reference to Chapter 85 made in the application and that it

was clearly a Stalking Protective Order based on the language in the application.

Mrs. Morris responded: “I understand that she’s been accused of stalking. We are

here. We’ve obviously received notice. I just want to clarify to the court this is not

a family violence [protective order].” Id. at 9. At no time did Appellant object or

complain of lack of notice or due process, even when the court asked if she was

raising the issue. Id.


   C. Testimony from Appellee at Hearing on Final Protective Order:

       The State called Mr. Hal Ketchum as its first witness. Mr. Ketchum testified

that he was a very successful country music performer and had been making

records for the past thirty years. Id. at 10-11. He initially met Appellant and her

son in 1994 or 1995, at a club during a “meet and greet” where he signed an

autograph for her. Id. at 12, 24. At that meeting, she stayed at the back of the line,

which concerned Mr. Ketchum because he knew from experience that the people at

the back of the line usually wanted to “capitalize on as much of your time as they

can get.” Id.



                                          2
      He saw Appellant again in 1997 when he opened the drapes of his home in

Nashville and saw her standing in his yard. Id. at 13. A police report of the incident

was made to local police. Id. After that, Appellant began showing up at his

children’s school, taking pictures of his grandchildren, and following him and his

family around the grocery store. Id. at 13, 15. He even observed her going through

his mailbox and sorting through his mail. Id. at 13, 48.

      Appellant would constantly show up at his wife’s place of work. Id. at 14.

Mr. Ketchum testified that he believed he had a restraining order in place against

Appellant in accordance with an anti-stalking law in Nashville. Id. On cross

examination, Appellant’s attorney asked him whether he had a copy of the

“protective order,” and he stated he did not. Id. at 27. Mr. Ketchum continued to

insist that he had either a protective order or restraining order out of Tennessee, at

times using the terms interchangeably. Id. The District Attorney’s office did not

offer a protective order into evidence. Id. When the Court asked whether the State

had a copy, its representative, Mr. Robinson, stated that only a police report was in

its possession, which Appellant also had. Id. at 28. The trial court, having been

made aware of the facts, proceeded with testimony. Id. Mr. Ketchum was subject

to a full and open cross examination regarding whether an actual protective order

or restraining order was in place in Tennessee or whether only a police report of




                                          3
Appellant’s stalking behavior was documented, and the trial court was fully

informed of these facts. Id.

      Mr. Ketchum also testified that, during concerts, he was forced to tell police

not to allow Appellant into the building when he was performing. Id. at 15.

Appellant followed Mr. Ketchum’s ex-wife into the restroom on several occasions

and he was forced to stop playing in order to make sure she was safe. Id. He

testified that the behavior was frightening. Id. Appellant constantly sent her

adolescent son backstage in an attempt to make contact with Mr. Ketchum, and the

incidents got so bad that Mr. Ketchum had to tell his manager not to allow the son

or the mother backstage access. Id. at 50-51.

      At one point he was informed by his management team that Appellant was

trying to pitch him a song and wanted to write a book about him. Id. at 30. She was

refused and asked to leave by his management team. Id. at 31. On cross

examination, Appellant’s attorney asked “if a person had an idea or wanted to pitch

something to you [Mr. Ketchum], would that not be the proper thing to do?” Id.

Mr. Ketchum, having thirty years of industry experience, replied “no, there’s

nothing professional about that. If somebody says no thank you very much that

should be the end of it, as with the pictures of my grandchildren, as with all of the

above. No thank you.” Id.




                                         4
       At an unknown date, Mr. Ketchum moved to Austin, Texas, then back to

Nashville, Tennessee. Id. at 40. According to his affidavit, he and his family finally

settled in Fischer, Texas, in Comal County, in October of 2013. CR 8. Though he

provided this date in his affidavit, Mr. Ketchum was not entirely sure of the exact

dates he moved between Texas and Tennessee, though multiple moves were made.

2 RR 40-41.The specific dates of many of his concerts were also not known, since

Mr. Ketchum has performed over one thousand shows. Id. at 25. What he was

certain of, however, was that Appellant continued to stalk him and his family,

again appearing in his yard on another occasion in Tennessee. Id. at 41.

      In Comal County, he lived on Fischer Store Road, and Appellant moved

approximately three miles away from his home. Id. at 15. From the back steps of a

store in the area, approximately one hundred feet from his property, Appellant

would take pictures of his house and children. Id. On three occasions, she

trespassed on his property. Id at 36. Mr. Ketchum stated that he knows what her

car looks like because she constantly follows him and that “she’s followed [him]

about four feet behind [him] all the way to Ace Hardware, all the way to

Brookshire Brothers in Wimberley time and time again.” Id. When asked whether

it was merely a coincidence that Appellant used the same road that Mr. Ketchum

uses to enter the town of Wimberley, Mr. Ketchum stated “…no. This is specific.




                                          5
This has specifically occurred on more than one occasion…when I stop to pick up

my daughter at school suddenly there she is.” Id. at 38.

       On January 23, 2014, Mr. Ketchum was out with his family for a birthday

gathering at an establishment called Gruene Hall. Id. at 16. Appellant was also at

the establishment, standing at the bar and mimicking Mr. Ketchum’s gestures. Id.

Mr. Ketchum and his family decided to leave. As they were walking toward their

vehicle, Appellant suddenly stepped out of the bushes two or three feet behind

them. Id. Mr. Ketchum turned and asked her to leave him and his family alone. Id.

Appellant then made a gesture with her hand in the shape of a gun and stated:

“mess with me and you will be sorry.” Id. at 17. According to Mr. Ketchum, he

“went off on her.” Id. He told her to stay away from him and that the harassment

and stalking had been going on for sixteen years and that he just wanted to be left

alone. Id. Mr. Ketchum’s seventeen year-old daughter, Rose, distraught and

frightened by the incident, ran into a shop and refused to come out for a period of

time. Id. at 17.

       On December 7, 2014, Mr. Ketchum’s daughter was followed and stalked by

Appellant around the town square in Wimberley, Texas, while she and a group of

friends attempted to shop. Appellant’s behavior forced the daughter and friends to

finally leave the area. Id. at 18. Within a one year period of time, in 2014,

Appellant followed Mr. Ketchum to at least six of his shows, and in November of


                                         6
that year Mr. Ketchum again saw Appellant taking pictures of his home. Id. at 17-

18.

      On June 14, 2014, Mr. Ketchum was playing at a benefit concert at a newly

built hospital in New Braunfels, Texas. Id. During his performance, Appellant

walked in front of his children and grandchildren and began “constantly taking

pictures of them during the whole experience.” Id.

      In his testimony, Mr. Ketchum stated that he was “absolutely” in fear for his

safety. Id. at 19. He characterized Appellant as “relentless” despite telling her to

stop on numerous occasions over an approximate sixteen year period of time. Id.

He stated, “I lay in bed some nights and think there might be a bullet that will

come through my house. I’m frightened for my life, honestly.” Id. He also

explained that he understood he was a person in the “public eye” and was

accustomed to getting his picture taken regularly, but described Appellant’s

behavior as being very different, and explained that he had a publicist and

“anybody [who] wants to take my picture gets permission to take my picture. If

I’m in an autograph line my tour manager say, okay, camera, camera, camera, yes,

yes, no, occasionally. I constantly now look out my window, okay, waiting for the

next drive-by. Sounds kind of paranoid, but it’s come to that.” Id. at 19-20.

      Even more concerning, Mr. Ketchum noted that when he first met Appellant

she went by the name of Susan Eckert, but later changed her last name to


                                          7
Eckchum, in an effort to adopt part of Mr. Ketchum’s last name. Id. at 50.

Understandably, the fact that Appellant adopted Mr. Ketchum’s last name

disturbed and frightened him. Id.


   D. Testimony from Mrs. Andrea Ketchum at Hearing on Final Protective
      Order:

      The entirety of this evidence was corroborated by Mr. Ketchum’s wife,

Andrea Ketchum. The couple had been together for two years. Id. at 54. Andrea

Ketchum testified that Appellant would continually follow the family. Id. She told

the court that on January 23, 2014, after a birthday celebration, Appellant appeared

in a parking lot near their truck and made a signal with her hand in the shape of a

gun and threatened Mr. Ketchum that he would be sorry. Id. at 55. According to

Andrea Ketchum, during the same incident, when told to stay away from the

family, Appellant “returned by staring at us and smiling and said ‘I never knew

that you had a family,’ and just smiling really creepily.” Id. The incident escalated

to the point where their daughter had a panic attack. Id.

      Andrea Ketchum is in constant fear for her step-daughter’s safety, always

informing the local police at concerts to keep an eye on family members. Id. at 56.

Their daughter is no longer allowed to walk around town alone, for fear of what

Appellant might do. Id. Andrea Ketchum corroborated that Appellant has come

onto their property and taken pictures of their children and grandchildren. Id. At


                                          8
concerts, she testified that “everywhere we stand she [Appellant] appears. Behind

poles. If Rose [step-daughter] and I go to the restroom we’ll come out and she’s

following. She’s looking. She’s taking photographs and just even down to where

we put Rose in the truck and she’ll be outside surrounding the truck […] if Rose

goes across the street she’ll follow her across the street. If I have concern I put

Rose in the truck and lock the doors and listen to the radio and I’ll look outside and

Ms. Eckchum will be outside the truck.” Id. at 58-59, 65.


   E. Testimony from Appellant at Hearing on Final Protective Order:

      Throughout Appellant’s testimony, she attempted to explain her disturbing

behavior by claiming she was an amateur musician and reporter who covered many

of Mr. Ketchum’s concerts. Id. at 68. She claimed she met Mr. Ketchum at three

separate concerts beginning in 1994 while working as a staff member of the

Montrose Daily Press and covering the events. Id. at 67-69, 76.

      Appellant testified that her birth name was Billy Suzanne Barnes. Id. at 76.

She later changed her name to Suzanna Eckhart when she married her ex-husband.

When asked how she came by the name of Eckchum—which mirrored Mr.

Ketchum’s name—she attempted to explain the following: “Well, Eck, the first

part E-C-K is part of my married name. I kept that for my son’s sake. Chum means

friend. Apparently it is the end of Mr. Ketchum’s name but it’s also a name myself.

I put it together Eckchum which means like a life force friend.” Id. at 77.
                                          9
      Appellant described herself as an amateur guitarist who was inspired by Mr.

Ketchum to start writing music. Id. at 78. She was not a professional musician,

however, and was not making a living off of playing music. Id. at 79. She claims

she was both playing music as well as writing articles for various magazines and

newspapers while living in Tennessee, but worked at Shoney’s as a waitress to

earn money. Id. at 101.

      She claimed that in 1997, she discovered Mr. Ketchum’s address in a

magazine and wanted to see his home. Id. at 80. This is the same date local police

stopped her. Id. at 81. According to Appellant, she was “four or five houses away

from Mr. Ketchum’s.” Id. at 81. The police showed her several photos and told her

that she had been sending love letters to Mr. Ketchum. Id. She replied that she sent

the items only to Mr. Ketchum’s management office. Id. According to Appellant,

no protective order was issued, and police only informed her about “stalking” and

told her to leave Mr. Ketchum alone. Id. She stated that she was attempting to get a

book published but acknowledged that she “received a lot of problems from the

management people. A lot of damages that I was finding out later that they were

accusing me of stalking.” Id. at 83. In her testimony, Appellant did not address the

fact that Mr. Ketchum found her going through his mail in addition to standing in

his yard.




                                        10
      Appellant stated that she went to Austin sometime in 1997 to work on songs

because Austin was the “live music capital of the world.” Id. She performed at

cafes and bars, and most of the time on “freebee night” without pay. Id. at 84.

During that time she also wrote articles for small local papers. Id.

      Appellant testified that she moved to Fischer Store Road in August, 2013,

three months before Mr. Ketchum moved to the location. Id. at 86. She claimed

that due to a hip replacement, she was in a hospital and rehabilitation center from

approximately January 15, 2014 until February 3, 2014. Id. at 87. After that time,

she moved in with a friend until May, 2014. Id. at 88. During this time, she

claimed she was not staying on Fischer Store Road. Id. She denied ever taking

pictures of Mr. Ketchum’s home or his family. Id. at 90. When asked if she ever

took pictures of his family, she stated “No, I did not. Never.” Id.

      She admitted that she went to a show of his called “Wag Fest,” but stated

that, at the time, she was a radio host for Wimberley Valley Radio and only went

to the event in order to prepare for her radio program. Id. The manager of the

station, Mrs. Raybuck, later testified that Wimberley Valley Radio is not actually a

broadcast radio station, that it is only accessible on-line. Id. at 103. Also, Appellant

was not a paid employee, only a volunteer. Id. at 110. In fact, Appellant herself

approached the station in an attempt to start a show where she would be able to

interview musicians, and the station agreed. Id. at 105.


                                          11
      Appellant remembered encountering Mr. Ketchum on January 12, 2014, at

Gruene Hall while he was there with his friends and family. Id. at 90. She claimed

she was there in order to listen to music, then left the building to find coffee down

the street. Id. at 91. She decided to walk because she didn’t want to lose her

handicap parking spot. Id. at 92. She stated that when she was on the sidewalk she

saw Mr. Ketchum and heard him cursing. Id. She claimed Mr. Ketchum was

blocking her path and telling her to leave him alone. Id. She stated “each time I

would say to Hal would you move I’m getting coffee[,] he said, ‘no, you get. You

get back where you came.’ I said I’m getting coffee. Please move.” Id. at 93. She

then left the area and went to a police officer standing by Gruene Hall to inform

him of what had happened. No action was taken by the officer. Id.

      Appellant stated she was never at Gruene Hall on either January 23, 2015 or

March 21. She also denied being at Luckenbach on March 30 or April 12, when

Appellant was playing, though admitted having been there on a different date. Id.

at 94. She did not recall weather she was at Fischer Store on May 20. Id. at 95.

Throughout Appellant’s testimony, she attempted to dispute the dates of the

various musical events Mr. Ketchum performed at and noted in his original

affidavit for protective order. CR 8-9 (listing at least twelve recent and specific

dates and places Appellant has stalked him). She also attempted to justify her

presence at certain events by saying she was there to do interviews, and not to


                                         12
harass or stalk Mr. Ketchum. Id. at 95-98. She did not remember following Mr.

Ketchum or his family to Ace Hardware Store on November 20. Id. at 98. She

denied ever stalking him or threatening him with her hand in the shape of a gun. Id.

at 100. She stated Mr. Ketchum never asked her to leave him alone, except during

the incident at Gruene Hall, but admits she was aware of the stalking issue and

even stated that Dennis Hubbard, who owned another establishment called Fischer

Cantina near Mr. Ketchum’s property, had told her that she was not welcome at his

establishment because of the stalking problems. Id. at 39, 102.


   E. Testimony from Kathy Hudson at Hearing on Final Protective Order:

      Appellant called Ms. Kathy Hudson to testify on her behalf. Id. at 111. Ms.

Hudson also resided in Wimberley, Texas. Id. She stated she was a friend of

Appellant’s, and she was not certain when Appellant moved to Wimberley, Texas,

though she believed it was approximately two years prior. Id. at 112. Ms. Hudson

stated that she and her boyfriend “Snake” let Appellant live with them sometime in

December or January of 2013. Id. She claimed that she and her boyfriend later

found Appellant a place to live on Fischer Store Road sometime in August, 2013.

Id. Because of health issues, Appellant then moved back in with Ms. Hudson in

January, 2014 until May, 2014. Id. She claimed that during Appellant’s brief

rehabilitation, she did not appear to be mobile or able to “follow” anyone. Id. at

114. The only occasion on which Ms. Hudson observed Appellant in Mr.
                                        13
Ketchum’s presence was at a place called Cypress Creek. Id. at 114-115. There,

she saw Mr. Ketchum eating with friends and “he had two people from the

sheriff’s department come and he was pointing and talking to them I don’t know

what about…” Id.


   F. Testimony from Patricia Holmes at Hearing on Final Protective Order:

      Appellant also called Ms. Patricia Holmes to testify regarding the altercation

that occurred between Appellant and Mr. Ketchum. Id. at 71. She did not state

where the incident happened specifically or on what date it occurred, but said she

heard a man, presumably Mr. Ketchum, yelling and cursing at Appellant in a

driveway near her store. Id. at 71-72. She said that Appellant appeared calm and

that Mr. Ketchum was upset and angry. Id. Another woman, Mrs. Ketchum, was

pulling him back away from Appellant when he lunged, telling him to get in the

car. Id. Mr. Ketchum’s daughter was also there. After the incident she was upset

and crying and ran into Ms. Holms’ store, worried that her father was going to go

to jail. Id. Ms. Holms did not know what instigated the altercation. Id. at 74.


   G. Testimony from Susan Raybuck at Hearing on Final Protective Order:

      Finally, Appellant called Ms. Susan Raybuck to the stand. Ms. Raybuyck

owned and operated the Wimberley Valley Radio. As stated earlier, she informed

the Court that Appellant was not an actual employee, and that the station did not


                                          14
have an FCC Broadcast license. Id. at 103. On one occasion, she and Appellant

attended the benefit event called “Eppy the Clown,” presumably the same event

when the new hospital was opened in New Braunfels. Id. at 107. She did not

observe anything specific with regards to Appellant’s mannerisms towards Mr.

Ketchum while he was playing. Id. She was not specifically aware of Appellant’s

stalking problem but stated, “she [Appellant] told me at some point that he [Mr.

Ketchum] had got mad at her, but she never explained in any kind of detail and I

didn’t ask…” Id. at 108. Also, on December 17, she received a phone call from a

woman identifying herself as Andrea Ketchum, Mr. Ketchum’s wife, informing the

station that Mr. Ketchum was going to be filing a protective order against

Appellant. Id. Mrs. Ketchum told her that she believed Appellant was using her

position at the station to get close to Mr. Ketchum. Id.


   H. Final Order

      After listening to all of the testimony, the trial court requested the State’s

proposed final order. Id. at 116. Attorney for Mr. Ketchum tendered to the court a

copy of its proposed order, and stated on record: “Specifically we’re requesting a

lifetime protective order.” Id. Appellant requested that the order be denied or, in

the alternative, that reasonable restraints be put in place. Id. at 117. At no time did

she make any specific objections regarding the duration of the order or the

prohibited distance. See generally Id. at 116-21. The Court granted the order,
                                          15
finding “reasonable grounds” to believe that the applicant was a victim of stalking.

Id. at 117. The Court added: “I’m looking at 7(a) .05. One requires the Court to

order the alleged offender to take action as specified by the Court, the Court

attorneys, if necessary, appropriate to prevent or reduce the likelihood of future

harm to the applicant or a member of the applicant’s family or household. So in

that regard I think we need to be more specific…” Id. the Court ordered a lifetime

protective order and ordered the Appellant to:

         1. Not go to any venue where Mr. Ketchum was performing at
            least three (3) hours before and after the performance, as well as
            during performances;
         2. Stay one thousand yards (1,000) from Mr. Ketchum or his
            family or any member of his household, including his
            daughter’s school;
         3. Not take pictures of Mr. Ketchum, his family, or members of
            his household;
         4. Not communicate directly or indirectly with Mr. Ketchum or
            any member of his household;
         5. Not engage in any conduct toward Mr. Ketchum including
            following him or his family or member of his household that
            was reasonably likely to harass, annoy, harm, abuse, torment, or
            embarrass them;
         6. Not possess a firearm.

      The Court noted: “I understand that there’s been performances at places like

Gruene Hall and other locations… I can’t anticipate where he [Mr. Ketchum] may

or may not perform in the future, so that would be any performance venue. I think

that’s pretty simple to find out. Look in the newspaper.” Id. at 119. The Final

Stalking Protective Order was signed on January 22, 2015.


                                        16
   I. Hearing on Motion for New Trial:

      On February 19, 2015, Appellant filed a motion for new trial. On April 2,

2015, the Court held a hearing on Appellant’s motion for new trial. 3 RR 1.

Appellant’s motion stated vaguely: “I, Susan Eckchum, wish to appeal the

STALKING PROTECTIVE ORDER to the THIRD COURT OF APPEALS and

ask for a new trial based on the facts does not support the order as of this date

2/11/2015.” CR 26. No specific claims were made in the motion. At the Hearing,

held more than 30 days after Appellant’s motion for new trial was filed, Appellant

raised only two issues. Appellant argued that the State failed to prove the “crime of

stalking,” and that the evidence was legally and factually insufficient to support the

trial court’s findings. 3 RR 4-5. Appellant then suggested that there might be

constitutional issues regarding the distance Appellant was allowed to go near Mr.

Ketchum. Id. at 9-10. Neither of these issues were raised during the original

hearing or in her motion for new trial. The Court denied the motion, and addressed

the distance issue by amending the order and decreasing the stay-away provisions

from 1,000 yards to 1,000 feet. 3 Supp. SCR 8 (emphasis added).




                                         17
                    SUMMARY OF THE ARGUMENT

                                          1.

      Appellant contends that the evidence submitted at the Hearing on the Final

Protective Order was not legally or factually sufficient to support the granting of a

Stalking Protective Order. Appellant claims that there was no evidence to support

that a reasonable person would have feared death or bodily injury in this situation.

      However, legal and factual sufficiency existed to support the trial court’s

order. The record shows that Mr. Ketchum was stalked for over a decade and on

more than one occasion. The trial court, based on the totality of the evidence,

found “reasonable grounds” under the applicable criminal statute to believe that

Mr. Ketchum was a victim of stalking. During testimony, Appellant repeatedly

acknowledged that she had been told to stay away from Mr. Ketchum. Her

behavior continued despite this knowledge and after she threatened him and his

family “that he would be sorry.” Under the applicable statute, stalking occurs not

only when there has been a threat of bodily injury or death, but also if one

knowingly engages in conduct that would harass, annoy, alarm, abuse, torment,

embarrass, or offend a reasonable person. The evidence clearly shows that

Appellant’s behavior resulted in Mr. Ketchum reasonably feeling all of the above.



                                         18
                                          2.

      Appellant contends, for the first time on appeal, that the statutory framework

is unconstitutional and that the trial court’s lifetime protective order prohibits

Appellant’s free speech under the First Amendment and ability to take photos.

Appellant believes that it is unreasonable to require Appellant—who sometimes

volunteers to take photos for newspapers—to be aware of her surroundings and the

subject matter of her photos before she takes them.

      Appellant failed to preserve this argument for appeal. In addition, the

restrictions placed on Appellant are narrowly constructed, applying only to photos

taken of Appellant and members of his family, not the general public. The

restrictions are the result of Appellant’s invasion of Mr. Ketchum’s privacy and her

stalking behavior. Also, Appellant only risks criminal charges for violating this

order is she “knowingly” or “intentionally” violates it, thus alleviating the problem

of her being charged with a crime for accidentally running into him on the street or

accidentally taking photos of him or his children who happen to be in the

background.



                                          3.

      Appellant contends that the State relied on false testimony which deprived

Appellant of her due process, and that the trial court granted a stalking protective


                                         19
order when the State initially applied for a family violence protective order.

Appellant believes she was accused of a criminal offense and is now subject to an

order that restricts her constitutional liberty.

       Appellant failed to preserve this argument for appeal. Additionally, there

was no false testimony offered at the trial court hearing. Appellant offers no

evidence in support of her theory. Mr. Ketchum was subjected to a full and

thorough cross-examination regarding the facts and events as he knew them. The

trial court had discretion to weigh the evidence or lack of evidence, as well as all

testimony including the credibility of witnesses. In addition, from the beginning,

the State clearly filed a stalking protective order, which was even acknowledged by

Appellant’s attorney during the hearing. No issues regarding due process or notice

were ever brought up during the hearing, and Appellant’s attorney clearly

understood that the State was seeking a stalking protective order.



                                             4.

       Appellant alleges that the State originally filed a family violence protective

order, and that the trial court erred in granting a lifetime stalking protective order

not specifically requested by the State.

       Appellant failed to preserve this argument for appeal. In addition, the

original protective was in fact a stalking protective order, and proper notice was


                                            20
given to Appellant regarding the order. Appellant’s attorney acknowledged

repeatedly that she understood the State was pursuing a stalking protective order.

At the final hearing, the State requested that the stalking protective order be put in

place for a lifetime duration. In accordance with the trial court’s authority, the

lifetime stalking protective order was granted.



                                           5.

      Appellant alleges the trial court exclude testimony relevant to Mr.

Ketchum’s allegations and erred in concluding that the order was necessary.

      Appellant has failed to preserve this complaint for appeal by failing to file a

formal bill of exception. In addition, trial courts retain great latitude in imposing

reasonable limitations on cross-examination, and the trial court heard sufficient

evidence of stalking and threats of bodily injury or death to conclude that a lifetime

stalking protective was necessary.


                         STANDARD OF REVIEW

                          Legal and Factual Sufficiency

      A legal sufficiency challenge may only be sustained when (1) the record

discloses a complete absence of evidence of a vital fact, (2) the court is barred by

rules of law or of evidence from giving weight to the only evidence offered to


                                         21
prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a

mere scintilla, or (4) the evidence establishes conclusively the opposite of a vital

fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex.1998).

The Court considers evidence in light most favorable to the finding and indulges

every reasonable inference that would support it. City of Keller v. Wilson, 168

S.W.3d 802, 822 (Tex.2005). If more than a scintilla of evidence exists, it is legally

sufficient and the holding will be upheld. Lozano v. Lozano, 52 S.W.3d 141, 145

(Tex.2001). To rise above a scintilla, the evidence offered to prove a vital fact must

do more than create a mere suspicion of its existence; it must rise to a level that

would enable reasonable and fair-minded people to differ in their conclusions. Id.

      In reviewing a factual sufficiency challenge, the Court weighs all of the

evidence in the record. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996). The Court

will overturn the finding only if it is so contrary to the overwhelming weight and

preponderance of the evidence as to be clearly wrong and manifestly unjust. Id.

Additionally, the trier of fact is the sole judge of the credibility of the witnesses

and the weight to be given their testimony. GTE Mobilnet of S. Tex. Ltd. P'ship v.

Pascouet, 61 S.W.3d 599, 615–16 (Tex.App.-Houston [14th Dist.] 2001, pet.

denied). The Court will not substitute its judgment for that of the trial court merely

because it might reach a different conclusion. Id. at 616. When there are no

findings of facts and conclusions of law, all facts necessary to support the


                                         22
judgment and supported by the evidence are implied. BMC Software Belgium, N.V.

v. Marchand, 83 S.W.3d 789, 795 (Tex.2002).


                              Preservation of Error

      A constitutional complaint must be made to the trial court by a timely

request, objection, or motion. See Lancaster v. Lancaster, 01-12-00909-CV, 2013

WL 3243387, at *1 (Tex. App.—Houston [1st Dist.] June 25, 2013, no pet.) (not

designated ofr publication) (citing Tex. R. App. P. 33.1(a)(1); Mansions in the

Forest L.P. v. Montgomery Cnty., 365 S.W.3d 314, 317 (Tex. 2012); In re L.M.I.,

119 S.W.3d 707, 711 (Tex. 2003)); Valdez v. Valdez, 930 S.W.2d 725, 728 (Tex.

App.—Houston [1st Dist.] 1996, no writ)).

      In motions for new trial, grounds of objections must be specific enough to

eliminate speculation and allow the trial court to understand what is being alleged.

Tex. R. Civ. P. 322; see also Townsend v. Collard, 575 S.W.2d 422, 423-24 (Tex.

Civ. App.—Fort Worth 1978, no writ). Arguments are waived as to matters that

would not otherwise appear in the record unless appellant files a formal bill of

exception. Lancaster, 01-12-00909-CV, 2013 WL 3243387 *1 (citing Tex. R. App.

P. 33.2(e)(1)).




                                        23
                    Protected Speech under the First Amendment

          The Federal Constitution prohibits laws that abridge the freedom of speech.

U.S. Const. amend I. However, communication may be prohibited when

“substantial privacy interests are being invaded in an essentially intolerable

manner.” Cohen v. California, 403 U.S. 15, 21 (1971). Conduct is unlikely to

enjoy any protection where the actor intends the place the recipient in fear of death

or bodily injury. Ploeger v. State, 189 S.W.3d 812 (Tex. App.—Houston [1st Dist.]

2006, no pet.) (citing Long v. State, 931S.W.2d 285, 293 (Tex. Crim. App. 1996);

Clements v. State, 19 S.W.3d 442, 451 (Tex. App.—Houston [1st Dist.] 2000, no

pet.)).


                                    ARGUMENT

           1. Evidence is Legally and Factually Sufficient to Prove Stalking

          Appellant’s first argument centers around the belief that the State failed

show that Mr. Ketchum was reasonably placed in fear of bodily injury or death,

and that Appellant knew her conduct would cause those fears. The pertinent

stalking statute reads:


          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:


                                           24
                    (1) constitutes an offense under Section 42.07, 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
                           (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 individual 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 committed
      against the other person's property, or to feel harassed, annoyed,
      alarmed, abused, tormented, embarrassed, or offended; and
                    (3) would cause a reasonable person to:
                           (A) fear bodily injury or death for himself or
      herself;
                           (B) fear bodily injury or death for a member
      of the person's family or household or for an individual with whom
      the person has a dating relationship;
                           (C) fear that an offense will be committed
      against the person's property; or
                           (D) feel harassed, annoyed, alarmed, abused,
      tormented, embarrassed, or offended.

Tex. Pen. Code Ann. § 42.072 (emphasis added).

      The record shows that for over a decade, and on multiple occasions, Mr.

Ketchum was subjected to Appellant’s explicit and implicit threats directed at

himself as well as nearly every member of his family. Appellant was made aware

that her conduct was unwelcome and was told on many occasions by many people

to stop stalking Mr. Ketchum. The record, as well as every case cited by Appellant




                                       25
in her brief, supports the trial court’s finding that reasonable grounds existed to

show stalking had occurred.

   a) Appellant knew or should have known her acts would place Mr.
      Ketchum or his family in fear of bodily injury or death.

      Under the statute, “a     person acts knowingly, or with knowledge, with

respect to the nature of his conduct or to circumstances surrounding his conduct

when he is aware of the nature of his conduct or that the circumstances exist. A

person acts knowingly, or with knowledge, with respect 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). Proof of a culpable mental state often depends on circumstantial evidence

and “may be inferred from any facts tending to prove its existence, including the

acts, words, and conduct of the accused.” Hart v. State, 89 S.W.3d 61, 64

(Tex.Crim.App.2002).

      Appellant cites several cases that hold that the knowledge requirement is met

even when the accused is warned by third parties about her conduct. See, e.g.

McGowan v. State, 375 S.W.3d 585, 590, 591, (Tex. App.—Houston [14th Dist.]

2012, pet. ref’d) (indicating warnings from police officers and third parties gave

defendant knowledge that his conduct would be considered threatening bodily

injury to victim, and the offense of stalking contemplates the entire course of

defendant’s conduct); Allen v. State, 218 S.W.3d 905, 909 (Tex. App.—Beaumont

207, no pet.) (Finding jury could rationally conclude that victim’s violence toward
                                         26
defendant were a defensive response to defendant’s stalking, and that defendant

had knowledge he was placing victim in fear after police warned him to stay

away).

      Importantly, Appellant also cites Teague v. State, which holds that there is

no requirement that the State produce evidence of prior protective orders, actual

physical harm, direct threats of physical harm, or use of a weapon in order prove

that defendant should have reasonably known that her conduct placed victim in

fear of bodily injury. 06-14-00053-CR, 2015 WL 2236642, at *11 (Tex, App.—

Texarkana May 13, 2015, no. pet. h.); see also Hart, 89 S.W.3d at 64 (holding that

100 years of Texas law has established that direct evidence of the requisite intent is

not required and that a jury may infer mental state from any facts which tend to

prove its existence, including the acts, words, and conduct of the accused).

      Contrary to Appellant’s argument, it is not necessary that the State show

precisely what Appellant was thinking while she was stalking Mr. Ketchum. The

established case law shows that implied threats are just as real as direct threats, and

can take many different forms that serve to put the perpetrator on notice of his or

her conduct. See, e.g., Hansen v. State, 224 S.W.3d 325, 329 (Tex. App.—Houston

[1st Dist.] 2006, pet. ref’d) (holding that, while no direct evidence of physical

threats existed, defendant’s behavior in sneaking into victim’s home and leaving

behind paintings and love poems as a show of affection, and returning to the

                                          27
property after victim’s mother told him to stay away, would reasonably cause

victim and her mother to fear bodily injury.); Ploeger, 189 S.W.3d 799, 810

(finding that appellant knew or reasonably should have known victim would

perceive his conduct as threatening bodily injury due to victim’s personal

manifestations of fear and being told by third parties to stop his behavior).

      In Ploeger, no direct threats were made, only acts that could be construed as

affectionate pursuits, including sending love letters and cards to his victim. Id.

Ploeger notes that the frequency, escalation, content, and unsolicited nature of the

perpetrator’s behavior would have caused a reasonable person to fear bodily injury.

Id. Though the perpetrator never physically harmed or overtly threatened harm, the

court noted that an officer who testified in the case stated he “‘could understand

where [the victim] was coming from, given [the perpetrator’s] conduct.’” Id. The

officer was concerned about the perpetrator’s behavior because “[i]t just wasn’t

normal.” Id. It is an implicit feeling or understanding that a victim in that kind of

situation—considering the entire scope of events—does not know what to expect

from the perpetrator, and may still fear physical harm though nothing overtly

threatening has been said or done.

      In the present case, Appellant was told by many people throughout the years

to leave Mr. Ketchum alone. Mr. Ketchum testified that Appellant had been

constantly told not to go anywhere near him or his family. 2RR33. At nearly every


                                          28
concert he performed, he told police to keep her away. Id. at 15. Appellant testified

that while she still lived in Tennessee she was made aware by Mr. Ketchum’s

management team that she was stalking Mr. Ketchum. Id. at 83. There is no

dispute that Appellant was told by Nashville police to leave Mr. Ketchum alone.

Appellant herself stated that police stopped her on the street, informed her that she

had been taking pictures of Mr. Ketchum and sending him love letters, discussed

the offense of stalking with her, and asked her to leave him alone. Id. at 81. In her

testimony, she said she disagreed with the officers, but clearly states she was made

aware of the stalking problem and asked to stop. Id.

      When she was discovered going through his mailbox in Nashville, Mr.

Ketchum yelled at her and she promptly left the scene. Id. at 13. Though he did not

testify that he specifically told her to leave, she appeared to understand what he

was communicating when she physically left his property. Her actions were

enough for the trial court to implicitly find that she was aware she was not

welcome around him and that she was stalking him. Appellant also admitted she

was barred from a local business in Texas because the owner told her there were

“ill feelings” between she and Mr. Ketchum. Id. at 103. Ms. Susan Raybuck stated

on the stand that Appellant told her Mr. Ketchum “had gotten mad” at her at one

point. Id. at 108. Additionally, Mr. Ketchum again told Appellant to leave him

alone when she followed him at a birthday gathering in 2014. Id. at 16.


                                         29
      Appellant was told by Mr. Ketchum, his friends, and police to leave Mr.

Ketchum alone. Appellant acknowledged she understood, both directly though her

statements and indirectly through her actions, but continued to stalk Mr. Ketchum

despite this knowledge. The State’s evidence presented to the trial court was both

legally and factually sufficient.

   b) All of the evidence shows Appellant acted in a “common scheme”
      directed at Mr. Ketchum and his family, and Appellant’s statements—
      “Mess with me and you’ll be sorry”—and her “gun gesture,” as well as
      all implicit threats made over the years, are sufficient to show Mr.
      Ketchum reasonably feared bodily injury or death for himself or his
      family.

      Again, when determining whether a reasonable person would fear bodily

injury or death, it is important to understand the entire history between the parties.

See Ploeger 189 S.W.3d 811 (finding a jury rationally could have found that the

frequency, escalation, content, and unsolicited nature of appellant’s conduct, as

well as display of at least some anger when others disagreed with him, would cause

a reasonable person to fear bodily injury or death). The courts frequently look at

how a perpetrator’s actions have caused the victim to change his or her behavior in

response to the threats. Id. at 809 (relying on evidence of victim’s manifestation of

fear over three years and her avoidance of going to her church and gym because of

stalker’s actions to find reasonable fear existed). The Court in Ploeger stated:

“contrary to the suggestions in his brief, [victim] testified expressly that she feared

that appellant would cause her death or bodily injury because of his behavior. This
                                          30
testimony sufficed to support the jury’s implicit finding of this element.” Id. at

810. See also Teague, 2015 WL 2236642, at *8, *11. (noting how victim began

sleeping with a chair wedged under her door at night because she was fearful of

stalker, despite stalker’s claim that no threats were made and that her fear was a

fabricated “‘theory emanating from an irrationally scared individual.’”). A victim’s

aggressive response to a perpetrator’s threat may appear inconsistent at first.

However, when considering the pattern of stalking, these actions are often a

“defensive response” to the stalker’s behavior. See Allen 218 S.W.3d 908, 909

(holding that a jury could rationally construe victim’s physical violence toward

stalker as a defensive response, even when a witness for appellant controverted

victim’s account that she acted in self-defense).

      Some of Appellant’s actions, taken individually and alone, may not seem

extraordinary, but her conduct throughout the preceding decades would cause any

rational person, including Mr. Ketchum, to fear bodily injury or death. This is

especially so in the context of Appellant’s escalation of the stalking when she

followed Mr. Ketchum’s family and directly threatened him after he asked her to

leave him alone by using her hand in the shape of a gun and telling him that if he

messed with her he would be sorry. 2 RR 17. Mrs. Ketchum was also a witness to

this threat. Id. at 55. Appellant rationalizes her behavior by characterizing it as a

conditional threat only, though Mrs. Ketchum elaborated that Appellant, when told


                                         31
to stay away from the family, also “smiled really creepily,” and told Mr. Ketchum

that she didn’t know he had a family. These two threats are both implicit as well as

explicit threats, and can be seen as constituting two separate threats of bodily

injury, the one being Appellant’s hand motion of a gun while saying Mr. Ketchum

would be sorry, and the second, made moments apart, implicitly threatening his

family while smiling. See Hutton v. State, 313 S.W.3d 902, 908, 909 (Tex. App.—

Amarillo 2010, pet. ref’d) (holding that the stalking statute’s requirement that

events occur on more than one occasion does not require the elapse of a particular

or minimum interval of time). In Hutton, the threats came in the form of defendant

merely following two female joggers through the streets. No prior relationship or

verbal threats had ever been made, and the Court found that the evidence of

stalking was neither so weak nor so contravened by contrary evidence as to be

clearly wrong or manifestly unjust. Id. at 909. The threat and “gun” incident

involving Mr. Ketchum and Appellant occurred in 2014, after many years of Mr.

Ketchum being subjected to Appellant’s frightening behavior. Moreover, Mr.

Ketchum documented ten separate stalking incidents that occurred after the “gun”

threat. See CR 8-9. Whether Appellant was mentally ill or not is unknown, but not

knowing what a stalker is capable of doing, or when a stalker or obsessed fan has

reached a breaking point, is always a concern for victims of stalking.




                                         32
      To the extent Appellant argues that the testimony of Mr. Ketchum and his

wife during “gun” threat incident were not credible or controverted by a witness

who heard only a portion of the altercation, it is clear from the case law that the

trial judge is the sole determiner of witness credibility. See e.g., McGowan, 375

S.W.3d 590, (holding that despite appellant’s assertions that complainant’s

testimony was contradictory, inconsistent, speculative, and embellished in regards

to whether she felt rational fear of bodily injury, the jury was the exclusive judge

of the credibility of witnesses and the weight to be given their testimony); GTE

Mobilnet, 61 S.W.3d 615-16 (holding that the trier of fact is the sole judge of

witness credibility and the weight to be given their testimony).

      Patricia Holmes, a witness to the final moments of the incident, testified she

saw Mrs. Ketchum hold back Mr. Ketchum when he appeared to “kind of lunge” at

Appellant. 2 RR 71—72. She did not see or hear what caused Mr. Ketchum’s

reaction. 2 RR 74. At no point in her testimony did she say Mr. Ketchum instigated

the event. Mr. Ketchum admitted that he indeed “went off” on Appellant, but only

after she threatened him and his family. Id. at 17. The fact that he became angry at

Appellant does not controvert his assertion that he feared for himself or his family.

Nor was his reaction unreasonable, considering the fact that he is both a husband

and father confronted with the ongoing threats to himself, his wife, and his

children. One would not expect him to run in fear under such circumstances,


                                         33
leaving his family behind. Instead of fleeing, Mr. Ketchum’s defensive reaction

was to confront Appellant and protect his family, as any rational husband or father

would do.

      In addition to the explicit and implicit threats made by Appellant at the

birthday gathering in 2014, Mr. Ketchum testified to numerous incidents that

caused him bodily fear over the years. The first time he met Appellant in 1994 he

was concerned because she stood at the back of an autograph line, which indicated

to him that she wanted to monopolize his attention. 2 RR 12. Standing alone, this

occurrence may seem innocuous, but it marked the beginning of Appellant’s

obsession with Mr. Ketchum’s celebrity. Events became more disturbing as time

went on. As stated previously, Mr. Ketchum saw Appellant standing in his yard

and going through his mail. Id. at 13. She would show up at his children’s schools

and follow them at the grocery store. Id. It got to the point where Mr. Ketchum had

to alter his own behavior and lifestyle, informing police and security at the events

he played to watch out for her and make sure to protect his family. Id. at 14, 56. He

called police in Nashville about the stalking and his concerns. Id. at 13. He also

called Comal County Sheriff’s Office about Appellant’s behavior. Id. at 47. On

several occasions, when Appellant followed his wife into the restroom at concerts

he was playing, he was so frightened he stopped playing and went into the

women’s bathroom to retrieve her. Id. at 13.


                                         34
      This has negatively affected his entire life and career. He described her

behavior as a “cat and mouse” game. Id. at 13. He stated: “I constantly now look

out my window, okay, waiting for the next drive-by. Sounds kind of paranoid, but

it’s come to that.” Id. at 19, 20. Mrs. Ketchum testified that she always watches out

for Appellant at concerts, and often brings friends and family along in order to

keep an eye on Appellant. Id. at 56. Their entire family has changed their behavior

and is forced to be vigilant at all times. Id. Appellant has come onto his property

numerous times, causing his family fear. Id. at 12, 36, 41, 56. She appears

unexpectedly at his daughter’s school in Wimberley. Id. at 38, 51-52. Appellant

has no children that attend the Katherine Ann Porter School, yet has followed the

family and his daughter to that location on more than one occasion. Id. at 51-52.

She has also taken pictures of the family and followed them even after making the

“gun” threat.” CR 8-9. She follows his daughter through town and Mr. Ketchum

and his wife are forced to restrict where their daughter can go, preventing her from

walking around town or at venues alone. Id. at 18, 56, 58-59. Appellant has

surrounded Mr. Ketchum’s truck while his daughter was inside, and his wife was

concerned to the point where she locked the vehicle doors. Id. at 59. These

reactions are the result of a legitimate and reasonable fear of bodily injury or death

that escalated at the birthday celebration in 2014 when Appellant threatened Mr.

Ketchum and his family’s life. He has exhibited extraordinary restraint over the


                                         35
years in the face of Appellant’s relentless pursuit of his attention. She has even

gone to the extreme of adopting his last name. Id. at 50, 76-77.

      Appellant argues that all of these acts fail to show a common scheme of

threatening conduct, believing Appellant “works” in the same industry as Mr.

Ketchum and that the interactions are merely “chance encounters.” The evidence is

clear, Appellant has been stalking Mr. Ketchum for over sixteen years, at least

since 1997 when he found her standing in his front yard in Tennessee. Id. at 24.

This is a sustained pattern of behavior, not a handful of coincidental run-ins.

Appellant is not a professional musician, and while stalking Mr. Ketchum in

Tennessee she worked as waitress at Shoney’s. Id. at 101. At the same time as

alleging that she is a musician, Appellant alleges that she is also a reporter, and that

she sometimes appears at Mr. Ketchum’s concerts and takes pictures of his entire

family and his home because it is a part of her job. This is not consistent with the

sustained pattern of her behavior, and it fails to explain why she continually

follows his children to school or though town, why she went through his mail, or

why after being stopped by police in Nashville and asked to leave Mr. Ketchum

alone she continued the stalking.

      Ms. Susan Raybuck, station owner of Wimberley Valley Radio where

Appellant volunteered, testified that Appellant herself organized and pitched a

show to the station called Texas Hill Country Performers, and Appellant picked the


                                          36
musicians to invite on the show and did all of the research for the interviews. Id. at

105-106. The shows were Appellant’s idea, and she made the conscious choice to

go to the venues where Mr. Ketchum was playing even though she had been told to

leave him alone. At a benefit concert called Eppy the Clown, where Mr. Ketchum

was performing, Appellant volunteered to go to the venue and take pictures. Id. at

98, 99. Mrs. Ketchum put it best when she told Ms. Raybuck that Appellant “was

using her position to get close to Hal [Ketchum]). Id. at 108. Mr. Ketchum

expressly testified that he was “absolutely” in fear for his safety. Id. at 19-20. He

stated: “I lay in bed some nights and think there might be a bullet that will come

through my house. I’m frightened for my life, honestly.” Id. He described

Appellant’s behavior as being very different from the average fan or reporter, and

told the trial court that he constantly looks out his window wondering if he will be

the victim of a drive-by. Id. He acknowledges that this may sound paranoid, but

insists that she has gotten out of hand. Id.

      Additionally, Appellant relies heavily on Franklin v. Benton-Elam

throughout her argument. In Franklin, the applicant had been having an adulterous

affair with respondent’s husband for three years. 06-13-00126-CV, 2014 WL

1722165, at *1 (Tex. App.—Texarkana Apr. 30, 2014, no pet.)(not designated for

publication). Applicant testified that on two separate occasions, respondent

initiated altercations at various public locations. Id. at *2-*3. However, third party


                                           37
witness contradicted applicant’s testimony, specifically claiming that applicant

initiated the conflict. Id. A third and final incident occurred at a Dollar General

store, where the two women passed by each other near the entrance door. Id. at *3.

Witnesses for both sides indicated that the other party instigated the physical fight.

Id. at *3-*4. The trial court subsequently denied applicant’s protective order, and

in its finding of facts wrote that ‘“although [applicant] testified that threats were

made by physical harm, the testimony of other witnesses did not support this

testimony. The Court did not find [applicant’s] testimony credible.” Id. at *6. The

trial court described the physical fight as mutual combat. Id. at *6-*7. On appeal,

The Court of Appeals of Texarkana found that the trial court “clearly dismissed

applicant’s testimony and found that no testimony from others established an

active threat. The trial court refused to characterize [applicant] as a victim,” and

made specific conclusions of law characterizing the two parties as mutual

combatants. Id. at *8. The Texarkana Court repeated that that the trial judge “is the

sole judge of the weight and credibility of the evidence and is entitled to resolve

any conflicts in the evidence and to choose which testimony to believe.” Id. The

Texarkana Court found that the trial judge’s ruling was not arbitrary or

unreasonable, and refused to find that the trial court abused its discretion. Id.

      In the present case, Applicant has been stalking Mr. Ketchum for

substantially longer than three years. 2 RR 19. Since at least 1997, she has been


                                          38
shadowing Mr. Ketchum and his family across different states and multiple cities

where he has lived and performed, including Nashville, Wimberley, Gruene, and

Luckenbach. Id. at 18. In 2014 alone she followed him to at least six different

shows. Id. Again, these are not “chance encounters” in one small town during a

relatively short period of time. Contrary to Appellant’s assertion, Ms. Patricia

Holmes did not state that Mr. Ketchum in any way instigated the incident at the

birthday gathering in 2014. There has never been an allegation that Mr. Ketchum

has instigated or caused physical violence toward Applicant. Considering the

circumstances, he has exhibited remarkable restraint. His reaction toward

Appellant has been wholly reasonable and justified.

      As in Franklin, the trial court in this case was free to believe or disbelieve

whatever evidence was presented, and to determine the credibility of the witnesses.

Appellant failed to request findings of fact or conclusions of law. In light of

Appellant’s entire history of stalking Mr. Ketchum and his family, his fear of

bodily injury or death is not surprising or unreasonable. The evidence establishes

that there have been many explicit as well as implicit threats of bodily injury or

death made over the years. For these reasons, sufficient legal and factual evidence

exists supporting the trial court’s granting of the lifetime stalking protective order.




                                          39
         2. The Stalking Protective Order restrictions placed on Appellant in no
            way criminalize her protected speech, and Appellant has failed to
            preserve this argument for appeal.

         Appellant has waved any First Amendment argument on appeal. For

preservation, the record must show that Appellant’s complaint was made to the

trial court by a timely request, objection, or motion. Lancaster 2013 WL 3243387,

at *1 (citing Tex. R. App. P. 33.1(a)(1); Mansions 365 S.W.3d 317). The rule also

applies to constitutional claims. Id. (citing In re L.M.I., 119 S.W.3d 711 (noting

both the Texas Supreme Court and United States Supreme Court have held that

constitutional claims must be raised before the trial court to preserve error)). In

motions for new trial, grounds of objections cannot be couched in general terms,

including assertions that “the verdict of the jury is contrary to the law.” Tex. R.

Civ. P. 322; see also Townsend 575 S.W.2d 423-24 (noting rule 322 requires that

complaints in a motion for new trial be made with sufficient specificity to enable

the trial judge to clearly understand what is alleged as error; the judge should not

have to speculate, but should be directed to the matters upon which he is called to

rule).

         Appellant’s original motion for new trial stated: “I, Susan Eckchum, wish to

appeal the STALKING PROTECTIVE ORDER to the THIRD COURT OF

APPEALS and ask for a new trial based on the facts does not support the order as

of this date 2/11/2015.” CR 26. The motion did not make any constitutional


                                          40
complaints. At most, it may have given the trial court vague notice of factual or

legal insufficiency claims, though this language is also insufficient under Tex. R.

Civ. P. 322. (specifically noting that the statement “the verdict of the jury is

contrary to law” is insufficient). Despite the insufficiency of this motion, the trial

court granted Appellant a hearing. 3 RR 1. Attorney for Appellant admitted to the

court that the motion was very general. Id. at 4. At the hearing, Appellant’s

attorney stated: “The Stalking Protective Order […] has some clauses in there that

make it really difficult for Ms. Eckchum to live her life and take advantage of all

the freedoms that we have in this country under the Constitution.” Id. at 10

(emphasis added). She stated that “the order says she can't go half a mile -- 10,000

yards -- of a school in Wimberley, Texas.” Id. She informed the court that she

believed the order was vague regarding Mr. Ketchum’s workplace and his

children’s school and that “there may be due process issues,” with regards to a

“relatively low standard of proof.” Id. at 10, 21-22.

      Appellant did not state whether she believed the order violated the Texas

Constitution or the Federal Constitution, nor did she cite any specific provision.

The vagueness of Appellant’s assertion was evident when the trial court asked the

State for a response, and the State asked if she possessed any case law that would

shed light on her claim. Id. at 22. None was given. Id. It was unclear in the motion

for new trial as well as the arguments at the hearing what complaints Appellant


                                          41
was raising. See Id. at 21 (noting trial court was at times uncertain as to what rights

Appellant was arguing had been violated); Swain v. State, 181 S.W.3d 359, 365

(Tex. Crim. App. 2005) (ruling that appellant’s general objections in his Motion to

Suppress that statements made were in violation of constitutional and statutory

provisions were not enough to preserve error on appeal); Heidelberg v. State, 144

S.W.3d 535, 537-38 (Tex. Crim. App. 2004) (noting that it is well settled that the

legal basis of a complaint raised on appeal cannot vary from that raised at trial).

      The trial court made no specific rulings as to particular constitutional

arguments, only stating that “for the record the Motion for a New Trial is denied.”

3 RR 17. The hearing on the motion for new trial was held more than 30 days after

the motion was filed, and Appellant’s argument at the hearing was an attempt to

amend the original insufficient motion. Moritz v. Preiss, 121 S.W.3d 715, 720-21

(Tex. 2003) (“to give full effect to our procedural rules that limit the time to file

new trial motions, today we hold that an untimely amended motion for new trial

does not preserve issues for appellate review, even if the trial court considers and

denies the untimely motion within its plenary power period”).

      Both the motion for new trial and the complaints raised at the hearing were

insufficient to enable the trial judge to clearly understand what was alleged as

error. Appellant never mentioned any First Amendment issues, and has failed to

preserve it for appeal.


                                          42
        In the alternative, even if the Court finds Appellant preserved her argument,

the trial court’s order did not criminalize her protected speech. Appellant argues

that her First Amendment Rights were violated when the trial court prohibited her

from:

             1. Going within 100 feet of any venue where applicant is
                performing during the following times: during applicant’s
                performance, three hours prior to applicant’s performance,
                and three hours immediately after applicant’s performance;
             2. Taking photos or images of applicant, his children, spouse,
                grandchildren, or anyone else in his household.
        CR 19.

        She contends that, if violated, she could be charged with the criminal offense

of Violation of Protective Order under Tex. Pen. Code. §25.07, subjecting her to

possible jail time. Appellant believes this prohibits her from taking photos at public

events and public places, improperly criminalizing her protected speech.

Specifically, Tex. Pen. Code. §25.07 reads:

                  A person commits an offense if, in violation of a condition
        of bond set in a […] stalking case and related to the safety of a victim
        or the safety of the community, an order issued under Article 17.292,
        Code of Criminal Procedure, an order issued under Section 6.504,
        Family Code, Chapter 83, Family Code […] or Chapter 85, Family
        Code, or an order issued by another jurisdiction as provided by
        Chapter 88, Family Code, the person knowingly or intentionally:
               (1) commits family violence or an act in furtherance of
                    an offense under Section 22.011, 22.021, or 42.072;
               (2) communicates:
                      (A) directly with a protected individual or a member
                           of the family or household in a threatening or
                           harassing manner;


                                          43
                   (B) a threat through any person to a protected
                        individual or a member of the family or household;
                        or
                   (C) in any manner with the protected individual or a
                        member of the family or household except through
                        the person's attorney or a person appointed by the
                        court, if the violation is of an order described by
                        this subsection and the order prohibits any
                        communication with a protected individual or a
                        member of the family or household;
             (3) goes to or near any of the following places as
                 specifically described in the order or condition of bond:
                   (A) the residence or place of employment or business
                          of a protected individual or a member of the
                          family or household; or
                   (B) any child care facility, residence, or school where
                         a child protected by the order or condition of bond
                         normally resides or attends;
             (4) possesses a firearm.

      Tex. Pen. Code. §25.07 (emphasis added).

      It is important to note that the statute only makes criminal the above

specified acts that are done knowingly or intentionally. Id. Appellant believes she

will be held criminally liable if she takes a photo and accidentally captures an

image of Mr. Ketchum standing in the background. This is not the case. She must

also exhibit the specified mental state. Certainly the restrictions placed on

Appellant require her to be proactive before deciding to go to a music venue to

ensure that Mr. Ketchum is not playing there, but that it neither difficult nor

unreasonable under the circumstances.




                                        44
      As Appellant notes, while the right of free speech is guaranteed in the

Constitution, the government may prohibit communication when “substantial

privacy interests are being invaded in an essentially intolerable manner.” Cohen,

403 U.S. at 21. In Ploeger, the court noted that “while conduct does not lose First

Amendment protection merely because the actor intends to annoy the recipient,

such conduct is much less likely to enjoy protection where the actor intends to

frighten the recipient, ‘and such conduct is unlikely to enjoy any protection where

the actor intends the place the recipient in fear of death or bodily injury.’” 189

S.W.3d at 812 (emphasis added) (citing Long, 931S.W.2d at 293; Clements, 19

S.W.3d at 451).

      In addition, to the extent Appellant claims she is a news journalist, “the right

to speak and publish does not carry with it the unrestrained right to gather

information.” Connell v. Town of Hudson, 733 F. Supp. 465, 468 (D.N.H. 1990). In

Connell, as in a number of the media cases cited by Appellant, what the court

considered was a newsperson’s right to gather news at a traffic wreck where police

were attempting to secure the location, and the newsman was interfering with that

procedure. Id. at 465. This is vastly different from Mr. Ketchum’s case. It has

already been established from the record that Appellant has knowingly placed Mr.

Ketchum and his family in great fear of bodily injury and death due, in part, to the

photos she constantly takes of them and her appearances at his concerts. As a


                                         45
successful musician, these venues are often Mr. Ketchum’s place of employment.

Even though Appellant claims her acts are innocent, the evidence suggests

otherwise, and the trial court found that she had committed stalking. See Ploeger,

189 S.W.3d at 813 (holding that, as applied to appellant, stalking statute was not

unconstitutional despite his claim he was only courting victim; and in light of the

evidence his conduct was removed from First Amendment protection).

      In regards to protective order statutes that prohibit communication, The

Third Court of Appeals of Austin has stated that although certain prohibitions my

sometimes apply to any manner of communication, “[§ 25.07(A)(2)(c)] only

prohibits communication in the context of a pre-existing court order issued against

a person […] based upon a finding that family violence has occurred or will occur

in the future. Thus the section has a narrowly defined scope, limited to persons

who’s prior actions toward the protected individual were of such a threatening

nature that a court felt justified in issuing a protective order against that person.”

Garcia v. State, 212 S.W.3d 877, 889 (Tex. App.—Austin 2006, no pet.) In the

same sense, Appellant has already been found to have committed stalking, is only

prohibited from going to venues where Mr. Ketchum is performing, and then only

for a specific amount of time. In light of Appellant’s threats, nothing in the trial

court’s order as applied to section 25.07 reaches a substantial amount of

constitutionally protected conduct, nor is it reasonable to assume that Appellant


                                         46
would stop stalking Mr. Ketchum if the trial court had granted only a two year

protective order. Due to Appellant’s history and the decades of documented

stalking, the trial court was within its power to issue the lifetime order. See e.g.

Tex. Crim. Pro. Code. Art. 7A.05 (directing the judge to order offender to take

action as specified by the court that the court determines is necessary or

appropriate to prevent or reduce the likelihood of future harm to the applicant or a

member of the applicant's family); Tex. Crim. Pro. Code. Art. 7A.07(a) (stating a

protective order may be effective for the duration of the lives of the offender and

victim); Appellant should not be allowed to use her unpaid ‘journalism’ as a shield

to continue stalking Mr. Ketchum. By Appellant’s logic, John Hinckley could

become an unpaid ‘celebrity journalist,’ and the Court’s would be powerless to

stop him from approaching Jodi Foster or Nancy Regan to ‘photograph’ them.

Thankfully, courts do not agree Appellant’s position. See e.g. Giboney v. Empire

Storage & Ice Co., 336 U.S. 490, 502 (1949) (noting it has never been deemed an

abridgement of freedom of speech or press to make a course of conduct illegal

merely because the conduct was in part initiated, evidenced, or carried out by

means of language, either spoken, written, or printed); R.A.V. v. City of St. Paul,

Minn., 505 U.S. 377, 389 (1992); Lewis v. S. S. Baune, 534 F.2d 1115, 1122 (5th

Cir. 1976); Smith v. Martens, 279 Kan. 242, 254-55, 106 P.3d 28, 38 (2005);

Champagne v. Gintick, 871 F. Supp. 1527, 1532 (D. Conn. 1994) (providing


                                        47
protection from stalking conduct is at the heart of the state's social contract with its

citizens, who should be able to go about their daily business free of the concern

that they may be the targets of systematic surveillance by predators who wish them

ill).

        3. No false testimony was elicited at the hearing, and Appellant has
           failed to prove any misleading testimony existed. Additionally,
           Appellant has failed to properly preserve this complaint for appeal.

        To avoid undue repetition, the same arguments and authorities given supra

(at 40-43) apply equally to this point of error. Appellant did not properly raise a

due process argument relating to alleged false testimony at the original hearing, in

her motion for new trial, or at the hearing on the motion for new trial. See

generally 2 RR 10, 21-22; 3 RR (Appellant’s attorney did not make specific

objections to Mr. Ketchum’s testimony regarding alleged “false protective order”;

CR 26. At the hearing on the motion for new trial, Appellant’s attorney only made

one mention of due process in regards to “standard of proof,” stating that the order

“effects her for the rest of her lifetime [and] there’s some due process issues there”.

3 RR 21-22. No due process issue regarding alleged false testimony was ever

raised, nor did Appellant attempt to introduce any new evidence of alleged false

testimony, which would require a formal bill of exception for preservation. See

Lancaster, 01-12-00909-CV, 2013 WL 3243387 *1 (holding appellant must file a




                                          48
formal bill of exception when complaining about a matter that would not otherwise

appear in the record) (citing Tex. R. App. P. 33.2(e)(1)).

      In the alternative, even if the Court finds Appellant preserved her argument,

Appellant has offered no evidence to support her contention that Mr. Ketchum

testified “falsely” or violated Appellant’s due process rights as a result. Appellant

contends that proof of the alleged falsity is proven by Appellant’s own testimony

denying she has ever had a protective order issued against her and the State’s

failure at the hearing to introduce a certified copy of a prior protective order.

Appellant’s argument is circular in nature, insisting that a prior protective order

must not exist because, otherwise, the State would have introduced it.

      At least in the context of criminal cases, even assuming false testimony was

introduced, which the State denies, it must be material to the jury’s determination

of guilt or convey a false impression. See, e.g., Ex Parte Chavez, 371 S.W.3d 200,

208 (Tex. Crim. App. 2012) (finding no due process violation despite undisputed

and unequivocal evidence that witness lied about identity of murderer); Ex parte

Ghahremani, 332 S.W.3d 470, 481 (Tex. Crim. App. 2011) (holding that applicant

is also required to show that a due process violation was not harmless in the

context of possible false testimony). In Chavez, the court pointed out the evidence

of the witness’s false testimony was undisputed because the real shooter later came

forward. 371 S.W.3d 208. In addition, the witness was subject to cross-


                                         49
examination by defense counsel regarding his observations, thus negating the

misleading nature of his statements. Id. at 209. Alternatively, in Ghahremani, the

court found that exculpatory evidence was intentionally concealed and was thus

material considering the fact that applicant was unable to raise the claim at the

trial. 332 S.W.3d 483.

        In the present case, Mr. Ketchum emphatically insisted that he had a prior

protective order out of Kentucky. 2 RR 33-34. Despite the fact that the State did

not have a copy in its possession, Appellant has not offered unequivocal evidence

of “false” testimony. 1 Nor has Appellant shown that Mr. Ketchum’s assertion

regarding the prior protective order was material to the trial court’s ruling. The

only piece of evidence which might be helpful in this case would be the trial

court’s findings of fact and conclusions of law, which Appellant never requested.

The overwhelming body of evidence on record supports the trial court’s granting

of the protective order. Mr. Ketchum was subject to thorough cross-examination

regarding the issue. 2 RR 27, 28, 30, 33, 34, 39. Id. at 28. When specifically asked

by the trial court whether the State had a prior order in its possession, Mr.


1
 Appellant repeatedly makes references to alleged evidence in her appendix and throughout her brief that
are outside the record. The case law is clear; an appellate court may not consider matters outside the
appellate record. Siefkas v. Siefkas, 902 S.W.2d 72, 74 (Tex. App.—El Paso 1995, no writ); Sabine
Offshore Serv., Inc. v. City of Port Arthur, 595 S.W.2d 840, 841 (Tex. 1979).




                                                  50
Robinson answered “no, Your Honor, just the police report.” Id at 28. The court

acknowledged this and told the parties to move on. Id. The trial court was not left

with any false or misleading impressions.

      Appellant additionally argues that the State made false claims when alleging

the grounds for stalking in its application for temporary protective order. Appellant

mis-cites the temporary order. The provisions listed under “IMMEDIATE

ORDER SOUGHT” are specific requests that the State made to the reviewing

judge. CR 4. These include the standard prohibitions against Appellant committing

stalking, communicating with the victim, or going near his residence. Id at 4-6.

This portion of the temporary order mirrors the section titled “PRAYER,” again

laying out the relief the State sought. Id. at 6-7. There is a distinct and separate

portion of the temporary order titled “GROUNDS FOR APPLICATION.” Id. at

6. Here, the State explicitly laid out the acts engaged in by Appellant. Id. The State

did not allege that Appellant was stalking a person currently protected by an order.

Id. Only Mr. Ketchum’s affidavit mentions that on February 14, 1997, in

Nashville, Tennessee, he received a restraining order against Appellant. Id. at 8-9

(emphasis added). He never alleged in his affidavit that he had a protective order.

Id. There is no requirement that restraining orders be attached to protective order

applications, and the relevant code was never invoked as Appellant suggests. Tex.




                                         51
Fam. Code Ann. §82.008. (stipulating that only “previously rendered protective

orders” be attached to applications for protective orders).

      In any event, Appellant has failed to show how these facts or lack of facts

materially misled the trial court or violated her due process. There was no false

impression created in the court’s mind, and the entirety of the evidence supported

the court’s grating of the final stalking protective order.

      4. The trial court did not err in granting relief specified in State’s
         application for stalking protective order, and Appellant has failed to
         preserve this complaint for appellate review.

      Appellant alleges that the State filed a family violence protective order and

that the trial court improperly granted a stalking protective order. To the extent

Appellant is making a due process claim, and to avoid undue repetition, the same

arguments and authorities given supra (at 40-43) apply equally to this point of

error. Appellant failed to properly raise the issue at the original hearing, in her

motion for new trial, or at the hearing on the motion for new trial. At the original

hearing Appellant’s attorney stated she received notice and that she understood that

the State was pursuing a stalking protective order. 2 RR 9. At the hearing on the

motion for new trial, Appellant’s attorney only made one mention of due process

in regards to “standard of proof,” stating the order “effects her for the rest of her

lifetime there’s some due process issues there,” and Appellant’s motion for new




                                           52
trial did not specifically raise any constitutional complaints. 3 RR 21-22; see also

CR 26. No issue regarding notice was raised.

      In the alternative, even if the Court finds Appellant preserved her argument,

Appellant was given fair notice of the claims being asserted, and she has failed to

show any harm. Generally, as cited by Appellant, the pleadings must support the

relief granted, and the petition must give fair notice of the claims being asserted to

the extent the court can reasonably infer such claims. Moreno v. Moore, 897

S.W3d 439, 442 (Tex. App.—Corpus Cristi 1995, no writ) (citing Cunnigham v.

Parkdale Bank, 660 S.W.2d 810, 813 (Tex. 1983)). The Texas Family Code Ann. §

82.041 sets out the notice requirements for protective orders in general. Considered

alongside Tex. R. Civ. P. 301, the statute does “not require that either the

application or the notice specify the act or acts which precipitated the claim […]

even as to the time or place it occurred, or any other information except for the

name of the applicant and the date and time of the hearing.” State for Prot. of

Cockerham v. Cockerham, 218 S.W.3d 298, 307 (Tex. App.—Texarkana 2007, no

pet.) “The purpose of the pleading requirements of Tex. R. Civ. P. 301 are to

provide notice of the matters to be heard,” and the requirements exists to allow a

respondent the opportunity to “marshal a defense.” Id. at 308.

      On December 16, 2014, the State filed an “Application for Protective Order”

on behalf Mr. Hal Ketchum against “Suzanna Ekchum; AKA Susan Eckhert.” CR


                                         53
4. In the application, Mr. Ketchum was named as a “victim of stalking,” and the

front page of the application stated that there was a “clear and present danger of

stalking if the order was not granted.” Id. The application never stated or claimed

that the State was seeking a family violence protective order, and no such language

was used in the application. The first paragraph of the application does state that

the order was being sought pursuant to Chapter 85 of the Texas Family Code. Id.

However, this is an accurate statement of the code, as stalking protective orders

under Chapter 7(A) of the Code of Criminal Procedure make numerous cross-

references to provisions in the Family Code regarding protective orders. See Tex.

Crim. Pro. Code. Art. 7A.04. (stating under the heading “APPLICATION OF

OTHER LAW” that, “to the extent applicable, except as otherwise provided by

this chapter, Title 4, Family Code, applies to a protective order issued under this

chapter.”).

       On January 16, 2015, the trial court held a hearing on the Final Protective

Order. 2 RR 1. At the hearing, attorney for Appellant, Patty Morris, brought it to

the court’s attention that the order being sought by the State was a stalking

protective order. 2 RR 6-9. It plain from the record that she wanted to clarify to the

trial court that a family violence situation had not occurred and that the State was

seeking a stalking protective order. Id. at 9. She informed the court that she

understood Appellant had been accused of stalking. Id. She stated that the State


                                         54
clarified any misunderstandings she may have had by telling her twelve days prior

to the hearing that it was indeed pursuing a stalking protective order, not a family

violence protective order. Id. at 7. The trial judge stated that there was only one

sentence in the application that made reference to the family code, and that it was

clearly a stalking protective order. Id. at 8. The trial judge asked if she was

objecting to anything specific, including due process. Id. at 9. Appellant never

objected or complained of due process and told the court that there was nothing

further she wished to discuss, nor did she request a continuance. Id. In her motion

for new trial, the issue was never raised. CR 26; See also Kissman v. Bendix Home

Sys., Inc., 587 S.W.2d 675, 677 (Tex. 1979) (noting that relief consistent with the

theory of the claim reflected in the petition may be granted under a general prayer).

      The State never alleged that it was seeking a family violence protective

order, nor could it be inferred from the application the State filed or the record.

Appellant’s attorney acknowledged that the State was seeking a stalking protective

order. Id. at 9. Mr. Ketchum’s affidavit directly accused the Appellant of stalking.

CR 8. In the State’s application, under “GROUNDS FOR APPLICATION,” the

State alleged Appellant engaged in stalking, and the specific relief requested by the

State in its “PRAYER” was to prevent Appellant from “committing stalking.” CR

6. The prayer also requests “for such relief in law or in equity to which Applicant

shows just entitlement” and “general relief.” CR 7. Also, the Writ states: “an


                                         55
application for a protective order has been filed in the court stated in this notice

alleging that you have committed Stalking.” Id. at 13. At the end of the original

hearing on the final stalking protective order, the state formally stated;

“specifically we’re requesting a lifetime protective order.” 2 RR 116 (emphasis

added).

      Appellant did not properly preserve her argument for appeal, and based on

the evidence heard at the hearing, the trial court properly granted the stalking

protective order for a lifetime duration. See e.g. Tex. Crim. Pro. Code. Art. 7A.05

(directing the judge to order offender to take action as specified by the court that

the court determines is necessary or appropriate to prevent or reduce the likelihood

of future harm to the applicant or a member of the applicant's family); Tex. Crim.

Pro. Code. Art. 7A.07(a) (stating a protective order may be effective for the

duration of the lives of the offender and victim); Teel v. Shifflett, 309 S.W.3d 597,

602 (Tex. App.—Houston [14th Dist.] 2010, pet. denied) (holding that a reviewing

court should liberally construe the petition to contain any claims that reasonably

may be inferred from the specific language used in the petition and uphold the

petition as to those claims, even if an element of a claim is not specifically

alleged).




                                         56
      5. The court did not exclude testimony relevant to Mr. Ketchum’s
         allegations, and Appellant has failed to preserve this complaint for
         appeal. Nor did the trial court err in concluding that the order was
         necessary.

      Appellant has waived her complaint that she was not allowed to present

specific evidence and ask specific questions of Mr. Ketchum since she has failed to

preserve her claim with a formal bill of exception. See Lancaster, 01-12-00909-

CV, 2013 WL 3243387 *1 (holding appellant, who complained that he was not

allowed to ask specific questions on cross-examination, failed to preserve the issue

by filing a formal bill of exception) (citing Tex. R. App. P. 33.2(e)(1)).

      In addition, “Trial courts retain great latitude in imposing reasonable

limitations on cross-examination.” Riley v. State, 01-95-01020-CR, 1997 WL

72013, at *2 (Tex. App.—Houston [1st Dist.] Feb. 13, 1997, pet. ref'd)(not

designated for publication). In the present case, Appellant was allowed a lengthy

cross-examination of Mr. Ketchum, despite the trial court overruling Appellant’s

objection that Mr. Ketchum was non-responsive. 2 RR 35. The entire record details

Appellant’s threatening behavior. Mr. Ketchum testified at length as to the stalking

that Appellant committed against him over many years, including standing in his

yard and going through his mail, threatening him at a birthday gathering, following

him through town, and following his daughter. Id. at 13, 16, 17, 18, 38.

      For these reasons, as shown by the entire record, sufficient evidence existed

for the trial judge to find that Appellant committed stalking and that a lifetime
                                          57
stalking protective order was necessary for the protection of Mr. Ketchum and his

family.


                                      PRAYER

      Based on the foregoing arguments, the State prays that this Court uphold the

decision of the trial court and find that Appellant is not entitled to any relief.



                                                                Respectfully submitted,

                                                                        Jennifer Tharp
                                                             Criminal District Attorney

                                                                                     By

                                                             /s/ Nicholas D. Robinson
                                                                 Nicholas D. Robinson
                                                                      SBN: 24067844
                                                                  Criminal Prosecutor
                                                     150 N. Seguin Avenue, Ste. #307
                                                         New Braunfels, Texas 78130
                                                                       (830) 221-1300
                                                                   Fax (830) 608-2008
                                                       E-mail: robinn@co.comal.tx.us
                                                                 Attorney for the State




                                           58
                              Certificate of Service

I, Nicholas D. Robinson, attorney for the State of Texas, Appellee, hereby certify
that a true and correct copy of this Brief for the State has been delivered to
Appellant SUZZANA ECKCHUM’s attorney of record in this matter:

      Mysha Lubke
      Baker Botts L.L.P.
      98 San Jacinto Blvd., Suite 1500
      Austin, TX 78701
      Phone: (512) 322-2500
      Fax: (512) 322-2501
      E-mail: mysha.lubke@bakerbotts.com
      For the Appellant on Appeal

By electronically sending it through e-file.txcourts.gov, this 6th day of November
2015.

                                                           /s/ Nicholas D. Robinson
                                                               Nicholas D. Robinson




                           Certificate of Compliance

I hereby certify, pursuant to Rule 9.4(i)(2)(B) and Rule 9.4(i)(3) of the Texas Rules
of Appellate procedure that the instant brief is computer-generated using Microsoft
Word and said computer program has identified that there are 14,591 words or less
within the portions of this brief required to be counted by Rule 9.4(i)(1) & (2) of
the Texas Rules of Appellate Procedure.

The document was prepared in proportionally-spaced typeface using Times New
Roman 14 for text.

                                                           /s/ Nicholas D. Robinson
                                                               Nicholas D. Robinson

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