14-17-00324-CV
Tex. App.Jan 29, 2019Background
- Appellant Jesse Lopez and appellee Shari Occhiogrosso had a long on‑off relationship and two children; a 2016 order granted Shari sole managing conservatorship and Jesse supervised visitation.
- On March 4, 2017, Shari reported that Jesse entered her apartment without permission, restrained and sexually assaulted her over several hours, threatened to kill her and family, had duct tape in a backpack, and later grabbed a knife; police were called and Shari had a sexual assault exam.
- Shari applied for a protective order under Tex. Code Crim. Proc. Chapter 7A and Tex. Fam. Code Chapter 85; the trial court held an evidentiary hearing April 10, 2017.
- At the hearing Shari testified in detail to repeated nonconsensual sexual acts; Detective Harris corroborated her emotional state and recovered the backpack with duct tape and trash bags; Jesse denied the assault and cited unrelated allegations.
- The trial court found family violence and reasonable grounds to believe Shari was a victim of sexual assault, entered a protective order (including no contact, stay‑away, counseling, and firearm prohibition), and set the order for 30 years; Jesse appealed.
Issues
| Issue | Plaintiff's Argument (Lopez) | Defendant's Argument (Occhiogrosso/State) | Held |
|---|---|---|---|
| Jurisdiction to enter 7A protective order | Trial court lacked subject‑matter jurisdiction because no criminal conviction exists | Statutes allow civil protective orders without a criminal conviction and venue was proper | Court: jurisdiction proper; overruled challenge |
| Sufficiency of evidence for sexual assault finding | No facts or credible evidence support the protective order | Victim’s detailed testimony, corroborating detective testimony, and physical evidence supported finding | Court: legal and factual sufficiency satisfied; order affirmed |
| Selective/discriminatory prosecution/enforcement | Lopez asserted he was singled out while others (Shari/father) were not prosecuted; alleged conspiracy | State: proceeding is civil protective order process; no evidence of discriminatory intent or that similarly situated persons were treated differently | Court: selective prosecution claim inapplicable; discriminatory enforcement not shown or preserved; overruled |
| Protective order as unconstitutional punishment / vagueness / judicial bias / prejudice to criminal trial | Order amounts to punishment (labeling, counseling, costs); Chapter 7A vague as to “victim”; judge biased, depriving Lopez of fair trial; order will prejudice future criminal trial | Protective orders are remedial, preventive (not punishment); “victim” has ordinary meaning and is not void for vagueness; judge acted to preserve courtroom decorum; any criminal prejudice speculative (not ripe) | Court: protective order not punishment; statute not unconstitutionally vague; no judicial bias shown; claim of prejudice to criminal trial not ripe; issues overruled |
Key Cases Cited
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (legal sufficiency standard and reviewing factfinder credibility)
- McGalliard v. Kuhlmann, 722 S.W.2d 694 (Tex. 1986) (factfinder may believe one witness and disbelieve another)
- United States v. Armstrong, 517 U.S. 457 (U.S. 1996) (nature of selective prosecution claim)
- Illinois v. Allen, 397 U.S. 337 (U.S. 1970) (trial judge may remove disruptive defendant to maintain order)
- King Street Patriots v. Texas Democratic Party, 521 S.W.3d 729 (Tex. 2017) (facial vagueness and due process standards)
- Grayned v. City of Rockford, 408 U.S. 104 (U.S. 1972) (vagueness principle: fair notice requirement)
- Ex parte Necessary, 333 S.W.3d 782 (Tex. App.—Houston [1st Dist.] 2010) (protective orders are preventive, not punitive)
- Harris v. State, 164 S.W.3d 775 (Tex. App.—Houston [14th Dist.] 2005) (Legislature did not intend protective orders to be prosecutions or punishment)