                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-12-00533-CR

DAVID ROBERT KALNBACH                                              APPELLANT

                                        V.

THE STATE OF TEXAS                                                      STATE


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          FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY

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                        MEMORANDUM OPINION1

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                                  I. Introduction

      A jury found Appellant David Robert Kalnbach guilty of aggravated assault

with a deadly weapon, assessed ten years’ confinement as punishment, and

recommended suspending his sentence and placing him on community

supervision. The trial court entered judgment accordingly, suspending imposition

on his sentence and placing Kalnbach on community supervision for ten years.




      1
      See Tex. R. App. P. 47.4.
      Around five years later, the State moved to revoke Kalnbach’s community

supervision, alleging that he had violated its terms by, on or about December 20,

2011,2 intentionally or knowingly going within 500 feet of his estranged wife

Audra’s residence in violation of a protective order. After a hearing, the trial court

entered judgment revoking Kalnbach’s community supervision and ordered

Kalnbach punished in accordance with the judgment and sentence originally

entered in the case. This appeal followed.

                                  II. Revocation

      In his first issue, Kalnbach argues that the protective order was not in

effect when he allegedly violated it ―because he was neither served with it nor

was he aware of its effective date.‖ In his second issue, he complains that the

trial court improperly admitted testimonial evidence of the protective order

contrary to the best evidence rule.

A. Standard of Review

      We review the trial court’s decision to revoke community supervision for an

abuse of discretion. Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App.

2006). The trial court does not abuse its discretion if the order revoking

community supervision is supported by a preponderance of the evidence, that is,

if the greater weight of the credible evidence would create a reasonable belief

      2
        The offense actually occurred on December 24, 2011, but Tarrant County
Probation Officer Doug Jones, who prepared the information for the State’s
petition, inadvertently identified the offense date as the date that the protective
order was issued, which was December 20.

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that the defendant has violated a condition of his community supervision. Id. at

763–64; Edwards v. State, 54 S.W.3d 834, 835 (Tex. App.—Fort Worth 2001,

pet. ref’d). In conducting our review, we view the evidence in the light most

favorable to the trial court’s ruling. Cardona v. State, 665 S.W.2d 492, 493 (Tex.

Crim. App. 1984). We defer to the trial court’s resolution of disputed facts and to

any reasonable inferences that can be drawn from those facts. Cantu v. State,

253 S.W.3d 273, 282 (Tex. Crim. App. 2008).

B. Evidence

      Parker County Sheriff’s Deputy J. Guynes testified that on December 24,

2011, when he arrived at the residence in question in response to a call about

the violation of a protective order, Kalnbach was less than 100 feet from the

residence. The trial court admitted into evidence the December 20, 2011 final

protective order from the Kalnbachs’ divorce case, which, among other things,

listed Audra Kalnbach as the protected party and set out a 500-foot distance

requirement from her residence. The trial court also admitted into evidence the

divorce case’s December 7, 2011 temporary restraining order and order setting

hearing for temporary orders and the divorce case docket record and entries,

which showed that a restraining order and temporary protective order was signed

on December 7, 2011, with a hearing on the final protective order set for

December 15, 2011, and that the final protective order was entered on December




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20, 2011.3 The docket entry includes the divorce judge’s handwritten notes that

Kalnbach represented himself pro se at the December 15 hearing and states,

―Protective Order granted to W[ife]/No spousal support ordered/W[ife] to have

exclusive possession of home and car. [Wife’s attorney] to submit order.‖

      Deputy Guynes testified that when he asked Kalnbach why he was there,

in addition to an oral explanation, Kalnbach handed him a packet of documents,

which included a protective order.     Deputy Guynes stated that the protective

order Kalnbach handed to him appeared to have been altered, with ―void‖

stamped in a contrasting color near the distance requirement and signed by a

Judge Roy Sanders.4 Deputy Guynes knew Judge Ben Akers, who had originally

signed the order, but he was not aware of a Judge Roy Sanders in Parker

County, so he contacted his supervisor, who told him that because it was

Christmas Eve, they would ―work it out of custody‖ and to send Kalnbach ―back to

where he came from, which was Tarrant County.‖            Deputy Guynes allowed

Kalnbach to retain the documents and watched him leave the premises.

      Deputy Guynes demonstrated on the State’s exhibits where Judge

Sanders’s signature and the ―void‖ stamps had been on the copy that Kalnbach

      3
       The divorce case docket record also indicates that the citation for the final
protective order had issued on December 21, 2011, but was then reissued on
December 29, 2011, after it was returned unserved because of the wrong
address.
      4
       Kalnbach raised a hearsay objection to the testimony about the protective
order and the markings the deputy described, and the trial court granted him a
running objection.

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showed him on December 24. He stated that the void stamps had a December

23 date and that the court designation with Judge Sanders’s name was the

District Court of Appeals, Northern District of Texas. The trial court took judicial

notice of a list of judges serving in the federal district courts for the Northern

District of Texas, which did not include a Judge Sanders.

      After Kalnbach argued that there was no evidence that the final protective

order was issued or that anything was pronounced at the December 15 hearing,

the trial court reset the case for further consideration.        When the hearing

resumed, the trial court entered the record of the December 15, 2011 hearing

into evidence.

      The December 15, 2011 record reflects that Judge Akers presided over a

final hearing on the protective order and that Kalnbach was present and

represented himself pro se. Audra testified that Kalnbach, who had a history of

violence, had moved out on October 31 and that when he returned on December

3, he had threatened her, her father, and her daughter. Kalnbach then testified

that Audra had thrown him out but that she had called him before Thanksgiving

and told him he could wash clothing at the house as soon as she left for her

mother’s house. Kalnbach told the trial judge, ―[I]f I have to stay away from the

house and all the people in this document, I don’t have a problem with it. I’ll stay

away from it.‖

      After the trial judge announced, ―I will grant the protective order‖ in favor of

Audra and her daughter and awarded Audra exclusive possession of the

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residence, Audra’s attorney told the trial judge that he had a proposed protective

order that he would e-mail to the court. Kalnbach then asked, ―The protective

order that he has on the computer at his house, will it pretty much say the things

that this does in here,5 so I know how to follow it? The one that he’s going to e-

mail you from his computer?‖ After Audra’s attorney agreed that the final order

would appear as ―what’s in the application,‖ Kalnbach stated, ―As long as I have

a set of instructions to follow.‖

      Kalnbach again argued that the final protective order had not yet been

―issued‖ under the family code at the time of the alleged offense on December 24

and that Judge Akers’s statement to him ―that he was going to grant the

protective order‖ did not meet the family code’s elements for issuance.

C. Analysis

      While Kalnbach agrees that formal service is not required when the State

can show the defendant’s actual knowledge or awareness of a protective order,

he complains that ―[h]ere, there was no record that [Kalnbach] knew of an order

at all,‖ because at the December 15 hearing, Kalnbach spoke of the order in the

future tense without correction by the trial court or opposing counsel. Kalnbach

contends that he was therefore entitled to believe that the new order would take

effect upon service in accordance with chapter 85 of the family code, and he




      5
        Based on the context of this statement, it appears that Kalnbach was
referring to the application for protective order.

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relies on Small v. State, 809 S.W.2d 253, 254 (Tex. App.—San Antonio 1991,

pet. ref’d), to support his argument.

      Small does not apply here because in that case, the court reversed Small’s

conviction for violating a protective order when the State had the burden to prove

beyond a reasonable doubt that he had knowingly and intentionally violated the

order and the record showed that prior to the alleged violation, Small had not

received notice of the order or been served with a copy of it and that he had not

otherwise received notice of what he was prohibited from doing from any source.

Id. at 255–57. In contrast, in his appellate brief, Kalnbach admits that he knew a

protective order was ―in the works‖ and that he knew the order’s specific terms,6

just not its effective date. As noted above, the State’s burden at the revocation

hearing was to show by a preponderance of the evidence that Kalnbach had

violated a term of his community supervision.

      Further, with regard to the protective order’s issuance under chapter 85,

when the order has not yet been reduced to writing but the respondent is present

at the hearing, ―[t]he clerk of the court shall mail a copy of the order to the

respondent . . . not later than the third business day after the date the hearing is

concluded.‖   Tex. Fam. Code Ann. § 85.041(c) (West 2008).            Because the

protective order hearing that Kalnbach attended was on Thursday, December 15,

      6
       The record of the December 15 hearing also illustrates that Kalnbach was
already familiar with the order’s terms. See Harvey v. State, 78 S.W.3d 368, 373
(Tex. Crim. App. 2002) (requiring that the protective order respondent be given
the resources to learn the order’s provisions).

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2011, under section 85.041(c), the order’s mailing date should have been no

later than Tuesday, December 20, 2011. See id.; see also Tex. R. Civ. P. 4.

Therefore, the order’s ―issuance‖ had to be on or before that mailing date, and

the record reflects that the judge in fact signed the order on December 20. See

Small, 809 S.W.2d at 256 (stating that ―the law is clear that a defendant is

presumed to know statutory law‖); cf. Hall v. State, 373 S.W.3d 168, 172 (Tex.

App.—Fort Worth 2012, pet. ref’d) (rendition of judgment occurs either orally in

court or in a signed order). Based on the evidence set out above, the trial court

could have found by a preponderance of the evidence that under chapter 85,

Kalnbach knew that a protective order with the same terms as the application for

protective order—if not immediately in effect at the conclusion of the December

15 hearing—would be in effect by the time he appeared at his estranged wife’s

residence on December 24. We overrule Kalnbach’s first issue.

      With regard to Kalnbach’s second issue, assuming without deciding that

the trial court improperly admitted testimonial evidence about the allegedly

marked-up protective order in Kalnbach’s possession on December 24, because

there remained ample evidence, as set out above, to support the trial court’s

revocation finding under the preponderance standard, the error—if any—was

harmless. See Tex. R. App. P. 44.2(b); Moon v. State, 44 S.W.3d 589, 594–95

(Tex. App.—Fort Worth 2001, pet. ref’d) (stating that the admission of otherwise

inadmissible hearsay is a nonconstitutional error and disregarded unless it

affects the defendant’s substantial rights). We overrule Kalnbach’s second issue.

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                              III. Conclusion

      Having overruled both of Kalnbach’s issues, we affirm the trial court’s

judgment.

                                         PER CURIAM

PANEL: MCCOY, DAUPHINOT, and GARDNER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: June 20, 2013




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