GARZA v. RENTERIA (2025)

OPINION

Appellant Michelle Ariana Garza (“Garza”) appeals a protective order entered in favor of appellees Patrick Renteria (“Patrick”) and Leslie Renteria (“Leslie”). In four issues we construe as three, Garza argues the trial court erred in entering a protective order for a period longer than two years because: (1) the trial court failed to make the necessary findings for a protective order under the Family Code; (2) the trial court failed to make the necessary findings for a protective order under the Code of Criminal Procedure; and (3) there is insufficient evidence supporting the necessary findings. Because we conclude the trial court made the necessary findings under the Code of Criminal Procedure and the Family Code when it orally rendered judgment and the findings are supported by legally and factually sufficient evidence, we modify the protective order to include the missing necessary findings and affirm as modified.

I. Background

Appellees’ live pleading for a protective order alleged that: Garza and Patrick were previously in a dating relationship; Garza committed family violence by threatening appellees and reasonably placed them in fear of imminent physical harm, bodily injury, assault, or sexual assault; Garza committed stalking and harassment of appellees; and Garza was reasonably likely to harass appellees in the future. Appellees sought a protective order pursuant to the Family Code and the Code of Criminal Procedure. See generally Tex. Code Crim. Proc. Ann. ch. 7B; Tex. Fam. Code Ann. ch. 81–88.

On November 27, 2023, following an evidentiary hearing, the trial court orally rendered judgment in favor of appellees, stating that Garza had committed family violence, dating violence, stalking, and harassment of Patrick and was likely to engage in that conduct in the future and awarding appellees with a protective order for a period of ten years. On January 4, 2024, the trial court signed the protective order in favor of appellees, but the order only provided that Garza had committed dating violence and family violence. This appeal followed.

II. Discussion

In three issues, Garza argues (1) the trial court failed to make the necessary findings for a protective order longer than two years under the Family Code; (2) the trial court failed to make the necessary findings for a protective order under the Code of Criminal Procedure; and (3) there is insufficient evidence supporting the necessary findings.

A. Applicable Law

Protective orders can be issued under both the Family Code and the Code of Criminal Procedure. Shoemaker v. State for Protection of C.L., 493 S.W.3d 710, 715 (Tex. App.—Houston [1st Dist.] 2016, no pet.); Straughan v. Girsch, No. 14-20-00763-CV, 2022 WL 2977049, at *3 (Tex. App.—Houston [14th Dist.] July 28, 2022, no pet.) (mem. op.); see also Goldstein v. Sabatino, 690 S.W.3d 287, 291–92 (Tex. 2024) (noting that Chapter 7B protective-order proceedings “are undisputedly civil matters”).

In relevant part, the Code of Criminal Procedure authorizes the trial court to issue a protective order when the court finds reasonable grounds to believe that the respondent engaged in conduct that would qualify as stalking under the Penal Code. See Tex. Code Crim. Proc. Ann. art. 7B.003(B); Tex. Penal Code Ann. § 42.072; Goldstein, 690 S.W.3d at 291–92. If the trial court finds there are reasonable grounds to believe the applicant is the victim of stalking, then the Code of Criminal Procedure requires the court to “issue a protective order that includes a statement of the required findings.” Tex. Code Crim. Proc. Ann. art. 7B.003(b). When a protective order is issued under the Code of Criminal Procedure based on stalking, the court is further required to issue a protective order in the manner provided by Title 4, Family Code, if, in lieu of the finding that family violence occurred as required the Family Code, the court finds that: (1) probable cause exists to believe that a stalking offense under Penal Code § 42.072 was committed; and (2) the nature of the scheme or course of conduct engaged in by the defendant in committing the offense indicates the defendant is likely in the future to engage in conduct prohibited by Penal Code § 42.072(a)(1), (2), or (3). Id. art. 7B.052. Protective orders issued under the Code of Criminal Procedure may be effective for as long as the duration of the lives of the offender and victim. See id. arts. 7B.003(b), 7B.007(a); Beach v. Beach, No. 01-19-00123-CV, 2020 WL 1879553, at *3 (Tex. App.—Houston [1st Dist.] Apr. 16, 2020, no pet.) (mem. op.).

Under the Family Code, protective orders protect family members from one of their own who turns abusive towards them. Stary v. Ethridge, 712 S.W.3d 584, 586 (Tex. 2025); see Tex. Fam. Code Ann. § 81.001 (“A court shall render a protective order as provided by Section 85.001(b) if the court finds that family violence has occurred.”). “Given the interests involved—protection of the vulnerable, interference in family relationships, and hefty criminal consequences upon violation of the order—these decisions must never be made lightly.” Stary, 712 S.W.3d at 586–87. In relevant part, protective orders under the Family Code may be effective for longer than two years if the trial court finds the respondent committed an act constituting a felony-level offense “involving family violence,” regardless of whether the respondent has been charged with or convicted of the offense. See Tex. Fam. Code Ann. §§ 85.001, 85.025(a-1)(1); Stary, 712 S.W.3d at 587. The Family Code requires the trial court to include such a finding in a protective order lasting for longer than two years. See Tex. Fam. Code Ann. §§ 85.001(d), 85.025(a-1)(1); Stary, 712 S.W.3d at 587. In Texas, stalking is a felony offense. See Tex. Penal Code Ann. § 42.072(b).

B. Standard of Review

We review the length of a protective order under the Family Code and under the Code of Criminal Procedure for an abuse of discretion. See Tex. Code Crim. Proc. Ann. art. 7B.007(a); Tex. Fam. Code Ann. § 85.025(a-1); In re Doe, 19 S.W.3d 249, 253 (Tex. 2000) (“The abuse of discretion standard applies when a trial court has discretion either to grant or deny relief based on its factual determinations.”). When challenging such a determination left to the trial court's discretion, legal and factual sufficiency of the evidence are not independent grounds for asserting error but are instead relevant factors in assessing whether the trial court abused its discretion. Fontenot v. Fontenot, 667 S.W.3d 894, 917 (Tex. App.—Houston [14th Dist.] 2023, no pet.). In determining whether an abuse of discretion exists because the evidence is legally or factually insufficient to support the trial court's decision, we consider whether the trial court had sufficient information upon which to exercise its discretion and whether it erred in its application of that discretion. Id. Thus, we review the trial court's findings supporting a protective order proceeding for legal and factual sufficiency. See Dolgener v. Dolgener, 651 S.W.3d 242, 256 (Tex. App.—Houston [14th Dist.] 2021, no pet.).

Evidence is legally sufficient if, viewing all the evidence in the light most favorable to the fact-finding and considering undisputed contrary evidence, a reasonable factfinder could form a firm belief or conviction that the finding was true. In re A.C., 560 S.W.3d 624, 631 (Tex. 2018). In conducting a legal-sufficiency review, the reviewing court cannot ignore undisputed evidence contrary to the finding, but it must otherwise assume the factfinder resolved disputed facts in favor of the finding. Id. at 630–31. In a factual sufficiency review, we examine the entire record and consider and weigh all the evidence, both in support of, and contrary to, the challenged finding. See id. Having considered and weighed all the evidence, we should set aside the judgment only if the evidence is so weak, or the finding so against the great weight and preponderance of the evidence, that it is clearly wrong and unjust. See id.

The trial court, as the fact finder in a bench trial, is the sole judge of the credibility of the witnesses and the weight to be given their testimony. See City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005); McKeehan v. Wilmington Sav. Fund Soc'y, FSB, 554 S.W.3d 692, 698 (Tex. App.—Houston [1st Dist.] 2018, no pet.). Thus, the trial court may choose to believe one witness and disbelieve another. McKeehan, 554 S.W.3d at 698. It is the fact finder's role to resolve conflicts in the evidence, and we may not substitute our judgment for that of the fact finder. Id.

C. Analysis

On appeal, Garza argues the trial court erred in entering a protective order for longer than two years because the trial court's protective order did not include a finding that she committed an act constituting a felony-level offense involving family violence, as required by the Family Code for a protective order longer than two years, or a finding that there were reasonable grounds to believe that she engaged in stalking, as required for a protective order under the Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 7B.003(B); Tex. Fam. Code Ann. §§ 85.001, 85.025(a-1)(1). Garza also challenges the sufficiency of the evidence supporting these findings. Contrary to Garza's argument, as discussed below, the trial court made the necessary findings when it rendered judgment at the end of the protective-order hearing, and the findings are supported by legally and factually sufficient evidence. See Baker v. Bizzle, 687 S.W.3d 285, 291–92 (Tex. 2024) (“Rendition of judgment requires a present act, either by spoken word or signed memorandum, that decides the issues on which the ruling is made.”). The trial court, however, failed to include these findings in the protective order. See Tex. Code Crim. Proc. Ann. art. 7B.003(b), 7B.052; Tex. Fam. Code Ann. §§ 85.001(d), 85.025(a-1)(1).

In relevant part, a person commits the offense of stalking if the person, on more than one occasion and pursuant to the same scheme or course of conduct that is directed at a specific other person, knowingly engages in conduct that: (1) constitutes harassment under Penal Code § 42.07; (2) causes the other person or a member of the other person's family or household to feel harassed, terrified, intimidated, annoyed, alarmed, abused, tormented, embarrassed, or offended; and (3) would cause a reasonable person under circumstances similar to the circumstances of the other person to feel harassed, terrified, intimidated, annoyed, alarmed, abused, tormented, embarrassed, or offended. See Tex. Penal Code Ann. § 42.072(a)(1), (a)(2)(B), (a)(3)(D). “A person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, the person ․ sends repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another ․” Id. § 42.07(a)(7). Thus, a protective order may be issued under the Code of Criminal Procedure against a person who has, on more than one occasion, knowingly harassed another person by sending repeated electronic communications, which caused that person to feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended, and would, likewise, have caused a reasonable person to have felt harassed, annoyed, alarmed, abused, tormented, embarrassed, or offended. Shoemaker, 493 S.W.3d at 717; see Tex. Penal Code Ann. §§ 42.07(a)(7), 42.072(a)(1), (a)(2)(B), (a)(3)(D), (a)(7).

Here, Patrick and Garza testified they were previously in a dating relationship and that Patrick's wife, Leslie, is Garza's third cousin. See Tex. Fam. Code Ann. §§ 71.0021, 71.003, 71.004. Patrick testified Garza had been abusive and aggressive towards him and his children and had made threats, including blackmail and extortion. According to Patrick, Garza harassed and threatened him and his former employer, including his supervisor, employees, and the human resources department, culminating in his termination after Garza posted a link to a pornographic website to his employer's Facebook website and sent the post directly to “all of the store, all of the dealerships my company owned[, and] over 100 dealerships, businesses, [and] even organizations.” Patrick further testified that he obtained an ex parte protective order prior to the protective-order hearing, but that Garza repeatedly violated the ex parte protective order by continuing “to post, harass, and call my job, and continued to tag family members, call me, text, and continued to harass my family as well.” Patrick explained he had blocked Garza's phone number but that he continued to get “a ton of messages” from Garza from unknown numbers and that he became scared by Garza's threatening “at this point because it's been almost a year and it's gotten worse and worse and worse.” After Patrick received an offer for employment from a new employer, Garza made comments on the Facebook profile of the company's human resources representative. Leslie testified she was fearful for herself and her children because Garza had “attacked and been very aggressive” and had displayed erratic behavior repeatedly and continuously. Leslie also testified that she was in fear of Garza's violent behavior and that Garza had threatened her specifically.

Testimony was presented and exhibits were admitted indicating that Garza sent many electronic communications through text messages, e-mails, and posts on Facebook that subjected Patrick to public ridicule in a manner that was intended to and was reasonably likely to harass, annoy, embarrass, abuse, and offend him, as well as a reasonable and objective person. See Tex. Penal Code Ann. §§ 42.07(a)(7), 42.072(a)(1), (a)(2)(B), (a)(3)(D). Patrick's affidavit in support of a protective order, which was admitted into evidence, provides that Garza has sent “threats to hurt my family and hurt me”; Garza told Patrick “that she would come to my job and harm me”; that Garza “has made it clear through text messages that she wants me fired and wishes harm to my family”; and that “[b]ased on [Garza's] threats, & harassment, I am very concerned for the safety of my family & myself.”

Garza testified that the Facebook posts had been made by her friend, Rolinda, who had created a false Facebook profile. According to Garza, she was not concerned about the posts and had asked Rolinda to stop making them.

At the end of the hearing, the trial court rendered judgment in appellees’ favor, stating:

Under [Family Code §] 71.002, dating violence, I'm going to grant a protective order for [Patrick] because dating violence can only be between two people and that's you and him; however, because you are the third cousin to his wife, which makes him also your cousin-in-law, I'm going to use [Family Code §] 71.004, family violence. And I'm going to grant a ten-year no contact protective order for the [Patrick], his spouse, and all of his children. This Court is going to find that family violence has occurred and those -- that family violence are threats․

Also, probable cause exists to believe that an offense such as stalking and harassment have occurred. The nature of the scheme or course of conduct indicates that Michelle Ariana Garza is likely to engage in that conduct again. Under Chapter 7B [of the Code of Criminal Procedure] stalking and harassment. You talk about his body, you call him ugly, you say things about his genitals and all the rest of that; that's harassment.

We conclude that the trial court's oral rendition here included the finding challenged by Garza and required by the Code of Criminal Procedure for the issuance of a protective order—that there were reasonable grounds to believe that Garza committed stalking and harassment and that Garza is likely to engage in stalking in the future. See Tex. Code Crim. Proc. Ann. arts. 7B.003(b), 7B.052; Baker, 687 S.W.3d at 291–92; see also Brinegar v. United States, 338 U.S. 160, 175–176, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949) (“Probable cause exists where ‘the facts and circumstances within [the officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed”). Likewise, we conclude that the trial court's oral rendition here included the finding challenged by Garza and required by the Family Code for a protective order longer than two years—that Garza committed family and dating violence against Patrick and also committed stalking, a felony-level offense, involving family violence through harassment and threats. See Tex. Code Crim. Proc. Ann. art. 7B.003(b); Tex. Fam. Code Ann. § 85.025(a-1)(1); Tex. Penal Code Ann. §§ 42.07(a)(7), 42.072(a)(1), (a)(2)(B), (a)(3)(D); Baker, 687 S.W.3d at 291–92.

Furthermore, contrary to Garza's argument, the evidence is not conclusory or insufficient. The stalking and harassment in this case—Garza's conduct consisting of repetitive, incessant, and escalating aggressive, hostile, and threatening behavior towards Patrick, his employer, wife, and children; her evident anger and escalating intent and attempts to cause Patrick harm in all areas of his life; and her indifference in her testimony combined with her repeated violations of the trial court's ex parte order—would place a reasonable person in fear of imminent bodily harm, as required to support “family violence” or “dating violence” under the Family Code. See Tex. Fam. Code Ann. §§ 71.0021 (defining “dating violence” in part as an act that is a threat that reasonably places the victim or applicant in fear of imminent physical harm, bodily injury, assault, or sexual assault), 71.004 (defining “family violence” in part as an act that reasonably places the family member in fear of imminent physical harm, bodily injury, assault, or sexual assault). Thus, we conclude there is legally and factually sufficient evidence that Garza committed family and dating violence against Patrick, as well as the felony offense of stalking Patrick involving family violence.¹ See Tex. Code Crim. Proc. Ann. art. 7B.003(b); Tex. Fam. Code Ann. § 85.025(a-1)(1); Tex. Penal Code Ann. §§ 42.07(a)(7), 42.072(a)(1), (a)(2)(B), (a)(3)(D); In re A.C., 560 S.W.3d at 630–31; Shoemaker, 493 S.W.3d at 718–10; see also Tex. Fam. Code Ann. §§ 71.004, 71.0021(a).

In sum, when the trial court orally rendered judgment, it made the necessary findings under both the Family Code and the Code of Criminal Procedure—which were supported by sufficient evidence—for the entry of the protective order here for a period of ten years. See Tex. Code Crim. Proc. Ann. art. 7B.003(b); Tex. Fam. Code Ann. §§ 85.001(d), 85.025(a-1)(1). Therefore, we cannot conclude that the trial court abused its discretion when it entered the protective order for a period of ten years. See Tex. Code Crim. Proc. Ann. art. 7B.003(b); Tex. Fam. Code Ann. §§ 85.001(d), 85.025(a-1)(1); Fontenot, 667 S.W.3d at 917.

Because the trial court made the necessary findings in accordance with the Family Code and the Code of Criminal Procedure, we modify the trial court's protective order to reflect these findings and overrule Garza's issues on appeal. See Tex. R. App. P. 43.2(b); Jones v. Baker, No. 01-22-00013-CV, 2023 WL 5353374, at *6 (Tex. App.—Houston [1st Dist.] Aug. 22, 2023, no pet.) (mem. op.) (“Appellate courts have the power to modify a trial court's judgment to ‘make the record speak the truth’ where the evidence necessary to correct the judgment appears in the record.”); McLendon v. McLendon, 847 S.W.2d 601, 610 (Tex. App.—Dallas 1992, writ denied) (“[W]hen the record reflects a clerical variance between a judgment announced in open court and the judgment eventually signed by the trial judge, the appellate court can modify the judgment to correct the mistake.”); see, e.g., Torrez v. Torrez, No. 12-23-00270-CV, 2024 WL 3858469, at *4 (Tex. App.—Tyler Aug. 15, 2024, pet. denied) (mem. op.) (modifying protective order to include the missing and necessary finding included in the court's oral rendition but omitted from the order and affirming as modified).

III. Conclusion

We modify the protective order to include the following findings by the trial court:

• Probable cause exists to believe that Garza committed the offense of stalking under Penal Code § 42.072, which is a felony-level offense, involving family violence.

• The nature of the scheme or course of conduct engaged in by Garza in committing the offense indicates Garza is likely to engage in stalking in the future.

We affirm the trial court's order as modified.

FOOTNOTES

1.   In her reply brief, Garza argues for the first time that the trial court also failed to make a finding that family violence was likely to occur in the future. See In re K.R.S., No. 14-07-00080-CV, 2008 WL 2520812, at *2 (Tex. App.—Houston [14th Dist.] June 24, 2008, no pet.) (mem. op.) (“That the A.G. could have but did not make such an argument in its opening brief does not allow it do so for the first time in its reply brief.”); López v. Montemayor, 131 S.W.3d 54, 61 (Tex. App.—San Antonio 2003, pet. denied) (“A reply brief is not intended to allow an appellant to raise new issues.”). Previously, the Family Code required the trial court to make a finding of family violence and a finding that family violence was likely to occur in the future, but the Legislature has since removed that requirement. See Tex. Fam. Code Ann. § 81.001. Nevertheless, the Code of Criminal Procedure still requires the trial court to find that the defendant is likely to engage in stalking in the future to enter a protective order on the basis of stalking. Tex. Code Crim. Proc. Ann. art. 7B.052. As discussed in this opinion, the trial court did make this necessary finding in its oral rendition.

Brad Hart, Justice