                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-096-CV


CHARLES LAMAR BEDINGHAUS                                           APPELLANT

                                        V.

ANDREA L. ADAMS                                                      APPELLEE

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           FROM THE 362ND DISTRICT COURT OF DENTON COUNTY

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                         MEMORANDUM OPINION 1

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                                 I. Introduction

      In three issues, Appellant Charles Lamar Bedinghaus asserts that the trial

court erred in granting a family violence protective order against him.     We

affirm.




      1
          … See Tex. R. App. P. 47.4.
                      II. Factual and Procedural History

      Sixty-seven-year-old Bedinghaus and Appellee Andrea L. Adams dated for

approximately ten months. Six months after the relationship ended, Adams

filed an application for a protective order against Bedinghaus. Adams provided

evidence that Bedinghaus took the following actions:

      •     Sent 600 to 800 emails or text messages to Adams after
            they broke up.

      •     Sent a text to Adams saying, “Just don’t ever relax because
            that’s when I will get my chance and get you I will . . . . I’ll
            always be around, close, waiting for my opportunity to get
            even with you.”

      •     Sent an email to Adams saying, “So now you will suffer the
            consequences that you so well deserve,” “[Y]ou’ll pay for
            your sins,” and “I will get you.”

      •     Sent an invoice to Adams showing that he had hired and paid
            a private investigator to follow her.

      •     Hired a private investigator to watch Adams and faxed
            Adams information from the private investigators.

      •     Printed derogatory statements about Adams and sent them
            to her relatives, neighbors, friends, and employer.

      •     Created and/or posted blogs on the internet that referenced
            Adams.

      •     Obtained Adams’s telephone number after she changed it.

      •     Threatened Adams into unblocking her email address so that
            he could continue to contact her.


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      •     Came onto Adams’s property and staked out the children’s
            home where Adams was employed.

      •     Told Adams that he saw her while she was vacationing at
            the Horseshoe Casino in Bossier City, Louisiana.

      As a result of the foregoing, Adams sought assistance from Bedinghaus’s

family, his attorney, and the police. Further, Bedinghaus stated at trial that he

wanted to hurt Adams as he had been hurt and that he believed Adams “forced

him” to take some of his actions by not apologizing to him.

      During the hearing, the trial court found that the threats contained in

various messages constituted family violence and that family violence had

occurred in the past and was likely to be committed in the future. He then

granted Adams’s protective order.     See Tex. Fam. Code Ann. §§ 81.001,

85.001 (Vernon 2005).      The protective order prohibited Bedinghaus, with

respect to Adams, from (1) committing any act intended to result in, or to

constitute a threat that reasonably places her in fear of, physical harm, bodily

injury, assault, or sexual assault; (2) communicating directly with her or with

members of her family in a threatening or harassing manner, including the

internet; (3) communicating a threat against her through any person; (4)

communicating with her in any manner, including but not limited to electronic

communications; (5) engaging in conduct to harass, annoy, alarm, abuse,

torment, or embarrass; (6) going to or near her residence or place of

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employment or business; and (7) possessing a firearm or ammunition. The

court also made seventeen findings of fact, including the following that

Bedinghaus challenges:

     5. Respondent, Charles Lamar Beginghaus, has committed acts that
     were threats that reasonably placed Applicant, Andrea L. Adams,
     in fear of imminent physical harm, bodily injury, or assault.

     6. After termination of the parties’ dating relationship, Respondent,
     Charles Lamar Bedinghaus repetitively contacted Applicant, Andrea
     L. Adams, through telephonic and electronic communication.
     Applicant requested that Charles Lamar Bedinghaus stop his
     contact but Charles Lamar Beginhaus did not stop that conduct.

     7. Respondent, Charles Lamar Beginghaus, contacted an ex-
     husband, an employer, family and friends of Andrea L. Adams and
     made derogatory statements about Andrea L. Adams.

     8. Respondent, Charles Lamar Bedinghaus, compiled derogatory
     statements about Andrea L. Adams and publicly posted them on his
     Internet blog, where they were available to the public.

     9. Between the date of service of the initial protective order on
     Respondent, Charles Lamar Beginghaus, and the date of the hearing
     on January 18, 2008[,] on the application for a protective order,
     Respondent, Charles Lamar Bedinghaus, continued to contact
     Applicant, Andrea L. Adams.

     10. The protective order hearing was conducted over the course of
     two hearing dates, those being January 18, 2008[,] and February
     14, 2008. When the Court recessed the case on January 18,
     2008, the Judge instructed both parties in open court not to
     contact the other party. During the recess between January 18,
     2008[,] and February 14, 2008, Respondent, Charles Lamar
     Bedinghaus, violated the Court’s instructions and contacted the
     Applicant.


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      11. Family violence is likely to occur in the future.

This appeal by Bedinghaus followed.

                       III. Legal and Factual Sufficiency

      In his first two issues, Bedinghaus complains that the trial court erred by

granting the family violence protective order because the evidence is legally and

factually insufficient to support the order.

A. Standard of Review

      We may sustain a legal sufficiency challenge only 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 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), cert. denied, 526 U.S. 1040 (1999); Robert W. Calvert, “No

Evidence” and “Insufficient Evidence” Points of Error, 38 Tex. L. Rev. 361,

362–63 (1960). In determining whether there is legally sufficient evidence to

support the finding under review, we must consider evidence favorable to the

finding if a reasonable factfinder could and disregard evidence contrary to the

finding unless a reasonable factfinder could not. Cent. Ready Mix Concrete Co.




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v. Islas, 228 S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168

S.W.3d 802, 807, 827 (Tex. 2005).

      When reviewing an assertion that the evidence is factually insufficient to

support a finding, we set aside the finding only if, after considering and

weighing all of the evidence in the record pertinent to that finding, we

determine that the evidence supporting the finding is so weak, or so contrary

to the overwhelming weight of all the evidence, that the answer should be set

aside and a new trial ordered. Pool v. Ford Motor Co., 715 S.W.2d 629, 635

(Tex. 1986) (op. on reh’g); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965);

In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951).

B. Family Violence

      Under the Texas Family Code, “family violence” is defined to include

“dating violence,” which in turn is defined as

      an act by an individual that is against another individual with whom
      that person has or has had a dating relationship and that is
      intended to result in physical harm, bodily injury, assault, or sexual
      assault or that is a threat that reasonably places the individual in
      fear of imminent physical harm, bodily injury, assault, or sexual
      assault, but does not include defensive measures to protect
      oneself.

Tex. Fam. Code. Ann. §§ 71.004(3), 71.0021(a) (Vernon 2005) (emphasis

supplied). Because of the disjunctive “or” between the two phrases of the

“dating violence” definition, that term includes a threat without an actual act

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of violence. Further, the definition implies that the “threat” depends upon the

reasonable belief of the person who is the object of the threat.        See id.

§ 71.0021(a).

      Here, Adams gave the following          uncontroverted testimony that

Bedinghaus’s actions placed her in fear of imminent physical harm:

      A. . . . I’m afraid. I never know from one minute to the next.

            ....

      Q. And you believe that to be a threat of physical violence?

      A. I do.

            ....

      Q. Does the fact that you know he has firearms frighten you?

      A. Yes, it did.

            ....

      Q. But in addition to that, were there a number of other things that
      he threatened to do?

      A. Yes.

      Q. And did some of those cause you to be in fear of physical
      harm?

      A. Yes.

      Q. Were you afraid that you might suffer bodily injury?

      A. Yes.

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      Q. Were you concerned that he might assault you?

      A. Yes.

      Q. Did email refer to he would get to you -- I’m going to
      paraphrase slightly, but he would get to you when you least
      expected it?

      A. Yes, it did.

      Q. And refer to that it would be in the future?

      A. Yes.

      The record, as previously partially recounted, is replete with reasonable

bases for her fear, including being followed by private investigators hired by

Bedinghaus; Bedinghaus having been on her property and at her place of work;

and Bedinghaus’s emails stating “I [will] get even with you for what you did,”

“I will get you real good one day when you are least expecting it,” “I will

always be around, close, waiting for my opportunity to get even with you. It

will happen . . . you can bank on it . . . when you least expect it,” “[Y]ou and

Benny Boy are both going to deeply regret the antics that you [guys] tried to

pull,” “[T]his is not going to end well,” “If you even begin to think that you

can’t be hurt anymore than you have been . . . then, you’re very naive and

innocent,” and “I hope you [don’t] choke on your turkey. Santa will come early

at your house this year.”




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      Bedinghaus did not deny at the hearing that he intended to place Adams

in fear of imminent physical harm; rather, he argued that he did not intend to

cause her actual physical harm. This, however, is not the reasonableness test

previously articulated. Further, although he contends that his statements are

taken out of context and often refer to court action, not physical violence, his

interpretation of his actions and their reasonableness is likewise not the test

previously discussed.

      Based on the foregoing, considering the evidence favorable to the court’s

findings if a reasonable factfinder could and disregarding evidence contrary to

the finding unless a reasonable factfinder could not, we hold that there is legally

sufficient evidence to support the court’s findings that family violence had

occurred and was likely to occur in the future. Likewise, after considering and

weighing all of the pertinent evidence, we cannot say that the evidence

supporting the court’s findings is so weak or contrary to the overwhelming

weight of all the evidence that it should be set aside and a new trial ordered.

We overrule Bedinghaus’s first and second issues.2


      2
        … We need not address Bedinghaus’s third issue, in which he complains
that the trial court abused its discretion by granting the protective order,
because this court reviews such challenges for sufficiency of the evidence,
measured by legal and factual sufficiency contentions. See Schaban-Maurer v.
Maurer-Schaban, 238 S.W.3d 815, 823 (Tex. App.—Fort Worth 2007, no
pet.); see also Tex. R. App. P. 47.1.

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                              IV. Conclusion

     Having overruled Bedinghaus’s dispositive issues, we affirm the trial

court’s judgment.


                                        BOB MCCOY
                                        JUSTICE

PANEL: LIVINGSTON and MCCOY, JJ.; and WILLIAM BRIGHAM, J. (Senior
Justice, Retired, Sitting by Assignment).

DELIVERED: February 5, 2009




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