                              NUMBER 13-08-00495-CV

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

INA NICOLE GARCIA,                                                             Appellant,

                                             v.

DOUGLAS EDWARD TAUTENHAHN,                                                      Appellee.


                    On appeal from the 430th District Court
                          of Hidalgo County, Texas.


                             DISSENTING OPINION
             Before Justices Yañez, Rodriguez, and Benavides
                 Dissenting Opinion by Justice Benavides
       I believe that the majority’s opinion allows an alleged sexual assault offender to

surreptitiously contact his victim, reasonably placing her in fear of further harm, while

avoiding the imposition of a sexual assault protective order. See TEX . CODE. CRIM . PROC .

ANN . art. 7A.03 (Vernon Supp. 2009). Therefore, I respectfully dissent.

       The majority sets forth the facts of the case, so I will not repeat them here. My

disagreement with the majority’s opinion is twofold: (1) the majority fails to consider the

threat from the proper perspective; and (2) by failing to do so, the majority permits the

alleged offender to evade a protective order. Significantly, the trial court found that “there

are reasonable grounds to believe that the applicant is the victim of a sexual assault.”
Therefore, the only question I will address is whether the evidence was legally and factually

insufficient to support the trial court’s decision that Garcia was not the “subject of a threat

that reasonably place[d] [her] in fear of further harm from [Tautenhahn].” See id.; Clements

v. Haskovec, 251 S.W.3d 79, 84 (Tex. App.–Corpus Christi 2008, no pet.) (setting forth the

standard of review this Court follows when reviewing the denial of a protective order).

         Utilizing a definition of “threat” from Merriam-Webster’s dictionary,1 the majority

focuses on whether Tautenhahn “intended to inflict injury or damage to Garcia or that he

intended to contact her and cause her further emotional harm.” ___ S.W.3d ____ (Tex.

App.–Corpus Christi 2010, no pet. h.). I believe using this definition is improper because

the focus of the statute is on whether the applicant feels a threat of further harm, not on

whether the alleged offender overtly threatens to harm her. See TEX . CODE. CRIM . PROC .

ANN . art. 7A.03. I would apply the definition of “threat” found in Black’s Law Dictionary,

which defines “threat” as “[a]n indication of an approaching menace.”2 BLACK’S LAW

DICTIONARY 1618 (9th ed. 2009).                       Additionally, following case law interpreting the

requirements for family violence protective orders,3 see TEX . FAM . CODE ANN . §§ 71.004,

85.001 (Vernon Supp. 2009), the proper focus is on whether Garcia felt a threat of further

harm. See Ulmer v. Ulmer, 130 S.W.3d 294, 300-01 (Tex. App.–Houston [14th Dist.] 2004,

no pet.) (en banc); see also Gonzalez v. Rangel, No. 13-05-641-CV, 2006 Tex. App. LEXIS

7254, at *9 (Tex. App.–Corpus Christi Aug. 17, 2006, no pet.) (mem. op.).

         Under these guidelines and the facts of this case, I believe that Garcia established

as a matter of law “all vital facts in support of the issue” that she was the subject of a threat


       1
         S ee   M E R R IA M -W E B S T E R O N L IN E D IC T I O N A R Y ,   a v a ila b le   at   h ttp ://w w w .m e rria m -
webster.com /dictionary/threat (last visited May 20, 2010).
        2
          The m ajority quotes, but does not apply, a sim ilar definition from Merriam -W ebster: “an indication
of som ething im pending.” Id.
         3
           Following case law interpreting the requirem ents of fam ily violence protective orders is appropriate
because, as the legislative history indicates, the purpose of adding chapter 7A to the code of crim inal
procedure was to m ake the sam e protective order rem edy available under the fam ily code to “a person who
is battered, sexually assaulted, or harassed by a fam ily m em ber, household m em ber, or by som eone the
person is dating” also available to “individuals alleging sexual assault . . . who [have] no prior relationship with
the perpetrator.” Senate Com m . on Crim inal Justice, Bill Analysis, Tex. S.B. 433, 78th Leg., R.S. (2003).

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that reasonably placed her in fear of further harm and that the trial court’s contrary finding

was against the great weight and preponderance of the evidence. See Dow Chemical Co.

v. Francis, 46 S.W.3d 237, 241-42 (Tex. 2001). Garcia testified concerning her fear that

further contact with Tautenhahn would cause her emotional harm. Further, Tautenhahn’s

actions of contacting her through his sister, stating to the Attorney General’s office that he

was interested in seeing his child, visiting Garcia’s dorm room uninvited, and contacting

people Garcia knew to inquire about her and the child, indicate an approaching menace:

that Garcia would be forced into contact with Tautenhahn. Significantly, Jaure testified that

merely being in the presence of an alleged offender can cause a victim to feel a threat of

further emotional harm. There is no contrary evidence in the record. Additionally,

permitting Tautenhahn to engage in this kind of activity, i.e., prying into Garcia’s life using

third-person intermediaries, will allow other alleged sexual offenders to effectively avoid the

operation of sexual assault protective orders by utilizing the same methods. This is a

consequence I cannot accept. Therefore, I conclude that the trial court erred in denying

Garcia’s application for a sexual assault protective order. Accordingly, I would reverse and

remand for a new trial.




                                                          GINA M. BENAVIDES,
                                                          Justice

Delivered and filed the
27th day of May, 2010.




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