Comment

General Commentary on Statutory Framework. Section 25.07 of the Texas Penal Code is broken up into two parts: (1) the orders that the defendant is alleged to have violated and (2) the conduct that the defendant is alleged to have engaged in to violate such orders. The orders that provide the basis for a charge under section 25.07 are—

• a condition of bond, which (1) was set in a family violence, sexual assault or abuse, indecent assault, stalking, or trafficking case, and (2) is related to the safety of a victim or the community;
• an order issued under article 17.292 of the Texas Code of Criminal Procedure (magistrate’s order of emergency protection);
• an order issued under section 6.504 of the Texas Family Code (dissolution of marriage);
• a temporary ex parte order issued under chapter 83 of the Texas Family Code if it has been served on the defendant;
• an order issued under chapter 85 of the Texas Family Code;
• an order issued by another jurisdiction as provided by chapter 88 of the Texas Family Code;
• an order issued under chapter 7A of the Code of Criminal Procedure (for conduct occurring before January 1, 2021); or
• an order issued under chapter 7B, subchapter A, of the Code of Criminal Procedure (for conduct occurring on or after January 1, 2021).

In order to be covered by section 25.07, the violation of one of these orders must be the knowing or intentional—

• commission of family violence as defined by section 71.004 of the Texas Family Code;
• commission of an act in furtherance of a Texas Penal Code offense under sections 20A.02 (human trafficking), 22.011 (sexual assault), 22.012 (indecent assault), 22.021 (aggravated sexual assault), or 42.072 (stalking);
• direct communication with a protected individual or a member of the family or household in a threatening or harassing manner;
• communication of a threat through any person to a protected individual or a member of the family or household;
• communication in any manner with the protected individual or a member of the family or household, except through the defendant’s attorney or a person appointed by the court, if the violated order prohibited any communication with a protected individual or a member of the family or household;
• act of going to or near particular places specifically described in the violated order;
• possession of a firearm;
• harming or threatening of an animal possessed or constructively possessed by the protected individual; or
• removal or tampering with the functioning of a global positioning monitoring system.

See Tex. Penal Code § 25.07(a). As should be apparent, a large number of jury instructions could be developed from these provisions. The Committee has chosen to prepare instructions for the following conduct: (1) commission of an act of family violence (CPJC 25.2); (2) prohibited communication (CPJC 25.3); and (3) going to or near a particular place (CPJC 25.4).

Degree of Offense.  The offense under section 25.07 is generally a class A misdemeanor, but there are several exceptions. Tex. Penal Code § 25.07(g). It is a third-degree felony if the defendant violated the order by committing a family violence assault or the offense of stalking or if the defendant has two prior convictions for this offense or an offense under section 25.072. Tex. Penal Code § 25.07(g)(2)(A), (g)(2)(B). The Committee has prepared a court instruction for the third-degree felony offense of violation of a protective order by committing a family violence assault (CPJC 25.2).

The offense under section 25.07 is a state-jail felony if the defendant violated an order based on an application filed under Texas Code of Criminal Procedure subchapter A, chapter 7B (for applications filed after September 1, 2021, or under article 7A.01(a–1) for applications filed before), which deals with a prosecutor’s filing of a mandatory protective order after the defendant’s conviction of certain offenses. Tex. Penal Code § 25.07(g)(1); see Acts 2021, 87th Leg., R.S., ch. 787 (H.B. 39), eff. Sept. 1, 2021. The offense under section 25.072 is a third-degree felony. Tex. Penal Code § 25.072(e).

Culpable Mental State—Conduct.  In the context of the prohibition on a defendant’s communication “with a protected individual or a member of the family or household in a threatening or harassing manner,” Tex. Penal Code § 25.07(a)(2)(A), the court of criminal appeals has held that the culpable mental state of “knowingly or intentionally” applies to the entire phrase “communicates directly with a protected individual or a member of the family or household in a threatening or harassing manner.” That is, the statute requires proof of a defendant’s knowledge or intent as to each element, including (1) that he communicated, (2) directly, (3) with a protected individual or a member of the family or household, (4) in a threatening or harassing manner. Wagner v. State, 539 S.W.3d 298, 308 (Tex. Crim. App. 2018) (citing Tex. Penal Code § 25.07(a)(2)(A)). In Wagner, the court of criminal appeals was dealing with a challenge to the constitutionality of the statute and did not, therefore, discuss the contents of the jury charge. One would assume that the court would similarly apply the culpable mental state to all conduct listed in section 25.07(a).

Culpable Mental State—the Order or Bond Condition. The plain language of section 25.07(a) reveals that the culpable mental states “intentionally or knowingly” in the statute apply to the performance of the acts described in the subsections that follow those words. They do not apply to the preceding language, “in violation of an order.” However, the court of criminal appeals has held that section 25.07(a) prescribes a culpable mental state for the element “in violation of an order” because the meaning of that term necessarily includes certain knowledge that amounts to a mental state. Harvey v. State, 78 S.W.3d 368, 371 (Tex. Crim. App. 2002).

In Harvey, the court reviewed various protective order provisions to which section 25.07 applied at the time. The court concluded that it was the evident purpose of those procedures to ensure that the person to whom the protective order applied has knowledge of the order or, at the very least, such knowledge of the application for a protective order that he would be reckless to proceed without knowing the terms of the order. Harvey, 78 S.W.3d at 371. In another part of its opinion, the court held that section 25.07(a) requires some knowledge of the protective order. Harvey, 78 S.W.3d at 373. Similarly, courts of appeals have held that the defendant’s knowledge of the protective order is an essential element of the offense of violating a protective order. Dunn v. State, 497 S.W.3d 113, 115 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d); Ex parte Pool, 71 S.W.3d 462, 467 (Tex. App.—Tyler 2002, no pet.) (citing Small v. State, 809 S.W.2d 253, 255–56 (Tex. App.—San Antonio 1991, pet. ref’d)).

Since Harvey, the protective-order procedures that provide a basis for an offense under section 25.07 have continued to ensure that the defendant has knowledge of the protective order:

• An order issued under article 17.292 of the Texas Code of Criminal Procedure, a magistrate’s order of emergency protection, is issued at the time of the defendant’s appearance before the magistrate (see Tex. Code Crim. Proc. art. 17.292(a), (b)), and the order must be served on the defendant (see Tex. Code Crim. Proc. art. 17.292(j)).
• A protective order issued under section 6.504 of the Texas Family Code or chapter 85 of the Texas Family Code is controlled by title 4, subtitle B, of the Texas Family Code, where service of the notice of the application for the order is required (see Tex. Fam. Code § 82.043), a required hearing on the application cannot be held without sufficient service (see Tex. Fam. Code §§ 84.003, 84.004), and the resulting order must be served on the defendant (see Tex. Fam. Code § 85.041).
• A temporary ex parte order issued under chapter 83 of the Texas Family Code must be served on the defendant (see Tex. Penal Code § 25.07(a)).
• An order issued by another jurisdiction as provided by chapter 88 of the Texas Family Code should require the defendant’s knowledge of the order; otherwise, evidence in support of the prosecution would be insufficient (see Harvey, 78 S.W.3d at 373).
• An order issued under chapter 7A of the Texas Code of Criminal Procedure is controlled by title 4 of the Texas Family Code (see Tex. Code Crim. Proc. art. 7A.04).
• An order issued under chapter 7B, subchapter A, of the Texas Code of Criminal Procedure is controlled by title 4 of the Texas Family Code (see Tex. Code Crim. Proc. art. 7B.008).

As noted more fully below, the court of criminal appeals in Harvey dealt only with the general question of whether a culpable mental state attached to the defendant’s violation of the protective order or bond condition and how the jury should be instructed to find that the state proved that culpable mental state. The question of instructing jurors on specific requirements of protective order provisions was not before the court. The court did note, however, that a party might be entitled to a fuller exposition of the requirements of a protective order provision on special request. Harvey, 78 S.W.3d at 373–74. No other appellate court decision has yet dealt with that potential “fuller exposition,” and the Committee has neither attempted to address whether such a “fuller exposition” is required nor attempted to provide such an instruction. However, the above provisions should provide a good foundation for such a jury instruction.

The court cautioned in Harvey that there is no requirement in the procedures for protective orders that the defendant know the specific provisions of the particular protective order:

Harvey, 78 S.W.3d at 373.

Harvey spoke directly to what should be included in a jury charge with regard to the defendant’s violation of the protective order. The court held that the phrase “in violation of an order issued under [the various statutory provisions]” must be construed in light of the procedural requirements of those various statutory provisions. So construed, the phrase means “in violation of an order that was issued under one of those statutes at a proceeding that the defendant attended or at a hearing held after the defendant received service of the application for a protective order and notice of the hearing.” The court further held that a court’s charge to the jury in the trial of a case of violation of protective order should include a definition of the phrase “in violation of an order issued under [the various statutory provisions]” that is similar to the construction that the court of criminal appeals has given it. Harvey, 78 S.W.3d at 373.

This portion of the Harvey opinion could mean that the trial judge should provide the jury with a definition of either “in violation of a protective order” or “protective order” in the definitions unit of the instruction, such as:

As explained more fully below, the Committee chose not to provide such definitions to the jurors.

In Harvey, the court of criminal appeals did not hold that the trial judge erred in failing to provide this type of definition in the abstract portion of the jury charge. Rather, the court held that the trial court’s charge in that case correctly told the jury, “A person commits the offense of violation of a protective order if, in violation of a protective order issued after notice and hearing, the person knowingly or intentionally commits family violence.” According to the court in Harvey, this portion of the trial court’s charge to the jury was the essence of the construction that the court had given section 25.07(a) of the Texas Penal Code. Thus, the court found no error in the charge. Harvey, 78 S.W.3d at 373.

In Villarreal v. State, the court of criminal appeals provided additional guidance by setting forth the hypothetically correct jury charge in a prosecution for violation of a protective order by committing assault (family violence):

Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009) (emphasis added). A reading of Harvey and Villarreal makes it clear that the court of criminal appeals has not required a trial judge to instruct the jury to specifically find the culpable mental state of “knowledge” with respect to the order. Rather, the court has opted for the jury to be charged on the circumstantial evidence, such as—in Villarreal—the defendant’s attendance at the hearing at which the order was issued.

The courts of appeals have likewise adopted this approach of instructing the jurors on the definition of violation of a protective order. For example, in Fountain v. State, the defendant was charged with committing the offense of violation of protective order by going to or near a prohibited place under section 25.07(a)(3)(A). The court of appeals held that the trial court charged the jury in accordance with the definition required by Harvey by charging the jurors as follows:

Fountain v. State, Nos. 05-11-00753-CR, 05-11-00797-CR, 2013 WL 1245725, at *2 (Tex. App.—Dallas Feb. 12, 2013, pet. ref’d) (not designated for publication) (emphasis added). In Fountain, the defendant requested that, in addition to this definition being given in the abstract portion of the trial court’s charge to the jury, the definition be repeated in the application paragraph. The trial court denied that request.

In Fountain, the court of appeals held that the trial court followed Harvey’s directive, noting that Harvey called for a definition of the element of violation of a protective order that would inform the jury that a violation must incorporate the defendant’s having “some knowledge of the protective order.” The court noted that in Harvey, the court approved an instruction that was not as detailed as the one given by the trial court in Fountain, and that was included within the abstract definition of the offense, not the application paragraph. Fountain, 2013 WL 1245725, at *3.

In Fountain, the court of appeals further held that the application paragraph tracked the Penal Code and referred “necessarily and unambiguously” to the definition of the offense found in the abstract portion of the charge:

Fountain, 2013 WL 1245725, at *3 (emphasis added). The court in Fountain found that the application paragraph’s reference to “in violation of an order” issued under the relevant statutes clearly referred jurors to the full definition given in the abstract portion of the jury charge.

Since Harvey, other courts of appeals have continued to find error in the trial court’s charge to the jury if the jurors are not instructed on the definition of “in violation of a protective order.” See Morgan v. State, Nos. 10-10-00367-CR, 10-10-00371-CR, 2011 WL 4837721, at *3 (Tex. App.—Waco Oct. 12, 2011, no pet.) (not designated for publication) (jury charge was erroneous because it did not require a finding that defendant attended the hearing or otherwise had specific knowledge of the existence of the protective order); Feldman v. State, Nos. 11-02-00339-CR, 11-02-00344-CR, 2004 WL 213005, at *3 (Tex. App.—Eastland Feb. 5, 2004, pet. ref’d) (not designated for publication) (although defendant’s requested instruction was misstatement of the law, it was sufficient to apprise the trial court of the omission in the charge).

Apparently, proof of the defendant’s knowledge or constructive knowledge of the protective order is not onerous. See Nielsen v. State, No. 02-19-00157-CR, 2020 WL 1808574, at *4 (Tex. App.—Fort Worth Apr. 9, 2020, no pet.) (not designated for publication) (sufficient evidence of defendant’s constructive knowledge of order—which was issued by default—because defendant had “received actual and reasonable notice of the hearing”); McIntosh v. State, 307 S.W.3d 360, 364 (Tex. App.—San Antonio 2009, pet. ref’d) (fact that defendant affirmatively “refused to sign” the protective order did not render order invalid); Poteet v. State, 957 S.W.2d 165, 167 (Tex. App.—Fort Worth 1997, no pet.) (court assumed that order was served on defendant when defendant was present at issuing hearing and waived his right to have court reporter make a record of hearing); Ramos v. State, 923 S.W.2d 196, 198 (Tex. App.—Austin 1996, no pet.) (defendant received notice, at least informally, of the existence of the court order before he violated it because defendant was served with (1) the notice of the application for the protective order, (2) a temporary ex parte order, and (3) a citation to appear before the court for a show-cause hearing on the application; defendant ended up not appearing at the hearing).

In Dunn, the court based its holding that the state had met its burden of proof upon an illegible signature that was presumed to be the defendant’s. The court stated that, in light of the presumption of regularity of the order and the absence of any evidence in the record showing that the signature on the order did not belong to the defendant, the signature on the order was evidence that the defendant signed the order and certified that he was present at the hearing, received a copy of the order in open court, and had knowledge of the issuance of the order. Dunn, 497 S.W.3d at 116–17 (additionally holding that defendant’s signature on the order certifying that he received a copy of the order in open court provided evidence that the magistrate complied with Tex. Code Crim. Proc. art. 17.292(j) by serving the order on the defendant personally, but that no separate record of such service was necessary).

There is no indication from Harvey or elsewhere that a trial court should look to the protective order provisions themselves in order to determine or charge the jury on the elements of the offense under Tex. Penal Code § 25.07. For example, in Dunn, the court of appeals held that the magistrate’s making of a separate record of service is not an element of the charged offense. Dunn, 497 S.W.3d at 117.

As with protective orders, the state would also be required to prove that the defendant knew or had constructive knowledge of a bail or bond condition, although the requirements may not include service (as in a protective order violation). See Christmas v. State, 464 S.W.3d 832, 840 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d) (the defendant signed the bail order, which required that he not contact the protected individual, and the defendant received a copy of the condition).

In Harvey, the court of criminal appeals held that section 25.07 requires that the defendant have some knowledge of the protective order that he is alleged to have violated. Harvey, 78 S.W.3d at 373. The court did not, however, require a trial court to instruct the jurors on the culpable mental state of “knowledge” with respect to the defendant’s violation of the protective order. The court instead approved of an instruction that would require the jurors to find that the defendant had some knowledge of the protective order because it was issued “at [1] a proceeding that the defendant attended or [2] at a hearing held after the defendant received service of the application for a protective order and notice of the hearing.” Harvey, 78 S.W.3d at 373. Therefore, the Committee has chosen to provide an instruction that requires the jurors to find that the defendant had some knowledge of the protective order because it was issued (1) at a proceeding that the defendant attended or (2) at a hearing held after the defendant received service of the application for the protective order and notice of the hearing.

Statutory Basis for the Order. It should be noted that Tex. Penal Code § 25.07(a) specifically lists the statutory provisions on which the various protective orders are based. The legislature has made the underlying statutory provision an element of the offense. Thus, the jury charge should include, and the state is required to prove, the statutory provision from section 25.07(a) that the defendant was alleged to have violated. Hoopes v. State, 438 S.W.3d 93, 95–96 (Tex. App.—Amarillo 2014, pet. ref’d).

Committing the Offense by Means of Committing Family-Violence Assault. Violation of a protective order or bond condition is a third-degree felony offense if the defendant violates the order or condition by committing an assault. See Tex. Penal Code § 25.07(g)(2)(B). This is not a stand-alone offense. The state must prove a violation of the protective order or bond condition by committing an assault and one of the means of committing the offense under section 25.07(a). Possibly the only means, but certainly the most likely, is by committing family violence. Tex. Penal Code § 25.07(a)(1) (“A person commits an offense if, in violation of a condition of bond [or a protective order], the person knowingly or intentionally . . . commits family violence . . .”). Combining the requirements of assault and the commission of the offense by family violence is somewhat complex. Section 25.07(b)(1) expressly adopts the Texas Family Code definition of “family violence,” which can be proven multiple ways, one of which includes a culpable mental state:

• (1) an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself;
• (2) abuse, as that term is defined by Sections 261.001(1)(C), (E), (G), (H), (I), (J), (K), and (M), by a member of a family or household toward a child of the family or household; or
• (3) dating violence, as that term is defined by Section 71.0021.

Tex. Fam. Code § 71.004 (emphasis added). See also Tex. Fam. Code § 71.0021(a)(2) (“dating violence” means an act that “is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the victim or applicant in fear of imminent physical harm, bodily injury, assault, or sexual assault”). Assault is defined as (1) intentionally, knowingly, or recklessly causing bodily injury to another; (2) intentionally or knowingly threatening another with imminent bodily injury; or (3) intentionally or knowingly causing physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative. See Tex. Penal Code § 22.01(a)(1)–(3).

Combining these statutes together to form the third-degree felony enhancement, there appear to be three required culpable mental states: (1) knowingly or intentionally committing an act (required by Tex. Penal Code § 25.07(a)(1) and the definition of family violence); (2) intending that physical harm, bodily injury, assault, or sexual assault result (required for one form of family violence); and (3) intent, knowledge, or sometimes recklessness as to causing injury, threat, or offensive contact (for assault). Of course, sometimes all three mental states occur simultaneously. When the state wishes to prove this offense through bodily-injury assault, the state can fulfill the requirement of family violence by proving that the defendant committed an act that was “intended to result in physical harm, bodily injury, assault . . .” See Tex. Fam. Code §§ 71.004, 71.0021(a)(2). Often the easiest way to meet the family violence definition’s intentional mental state is to prove an intentional assault. If the state anticipates its evidence will clearly show an intentional assault, it may plead this and simplify the elements to the following:

However, the state need not prove an intentional assault to prove an “act . . . intended to result in . . . bodily injury [or] assault” for family violence. See Tex. Fam. Code § 71.004. In Villarreal, the court of criminal appeals implicitly acknowledged that as long as the jury charge required an intent to result in physical harm, bodily injury, or assault, a knowing assault could lead to a conviction. It set forth the hypothetically correct jury charge in a prosecution for violation of a protective order by committing assault (family violence):

Villarreal, 286 S.W.3d at 327 (emphasis added). In Morgan, the court of appeals held that in a prosecution for violation of a protective order by committing family violence, the jury charge was erroneous because it did not require the jury to find that the defendant committed an act that was “intended to result in physical harm, bodily injury, or assault.” Morgan, 2011 WL 4837721, at *3. See also Ramirez v. State, No. 08-07-00207-CR, 2008 WL 3522369, at *2 n.1 (Tex. App.—El Paso Aug. 14, 2008, no pet.) (not designated for publication) (application paragraph required jury to find that defendant’s assaultive conduct “was intended to result in physical harm, bodily injury or assault or that was a threat that reasonably placed [the victim] in fear of imminent physical harm, bodily injury or assault”); Owens v. State, No. 02-05-00145-CR, 2006 WL 1791690, at *1 (Tex. App.—Fort Worth June 29, 2006, no pet.) (not designated for publication) (indictment properly alleged third-degree felony under section 25.07(g) when it alleged that the defendant committed an act of family violence by striking a family member and that this conduct was intended to result in physical harm, bodily injury, or assault).

To date, courts have not comprehensively addressed the differing culpable mental states for assault and family violence. Cf. Wingfield v. State, 481 S.W.3d 376, 381 n.9 (Tex. App.—Amarillo 2015, pet. ref’d) (trial court’s negative finding as to family violence in assault case was not incompatible with assault conviction because defendant could have knowingly or recklessly caused bodily injury in order to commit assault and was not required to commit an act that was intended to result in physical harm, bodily injury, or assault); Wang v. State, No. 09-17-00462-CR, 2019 WL 5057206, at *4 (Tex. App.—Beaumont Oct. 9, 2019, pet. ref’d) (not designated for publication) (in prosecution for assault, jury is not required to make a determination of the defendant’s culpable mental state for the trial court to make an affirmative finding on family violence, and the trial court’s determination of family violence is not contingent on the jury’s verdict); Zavala v. State, No. 03-05-00051-CR, 2007 WL 135979, at *3 (Tex. App.—Austin Jan. 22, 2007, no pet.) (not designated for publication) (court not addressing the higher culpable mental issue that allegedly arises in a felony assault case because there was no family violence finding made).

What is clear is that in a prosecution for violation of a protective order by committing family violence assault, the state is required to prove an assault and that the defendant committed an act (1) that was intended to result in physical harm, bodily injury, assault, or sexual assault or (2) that was a threat that reasonably placed the victim in fear of imminent physical harm, bodily injury, assault, or sexual assault.

The assault or intended assault could be an offensive touching under Tex. Penal Code § 22.01(a)(3). In Blevins v. State, the court of appeals held that the evidence was sufficient to support the defendant’s conviction for violation of a protective order by committing family violence, even though the victim testified that she did not feel any pain when the defendant shoved her. The court of appeals held that the evidence was sufficient to show that the defendant’s conduct was intended to result in intentional or knowing offensive physical contact, regardless of whether the victim felt any pain. Blevins v. State, No. 02-09-00237-CR, 2010 WL 5395836, at *3 (Tex. App.—Fort Worth Dec. 30, 2010, pet. ref’d) (not designated for publication). Given this permutation, it is possible to imagine how a reckless assault might still meet the “intending to result in . . . assault” element of family violence. See Tex. Fam. Code § 71.004. Take, for instance, a defendant who sees his ex-girlfriend, who has a protective order against him, practicing yoga. If he intends to touch her offensively but his touch also knocks her off balance, causing her injury, and he was reckless in disregarding the risk that would occur, he has committed a third-degree felony.

It also appears that if a defendant commits an act against a family member intending to result in injury, it may not be necessary for injury to actually result to meet the “intending to result in . . . injury [or] assault” standard. See Tex. Fam. Code § 71.004(1). In most cases, such an act would likely also be threatening, but perhaps not necessarily so. In that case, other forms of reckless assaults may still constitute intending-to-result family violence. For example, a defendant might take a swing at his wife, intending to hurt her, and miss, all while disregarding the risk that she will, in avoiding the punch, be injured when she drops a pan of scalding water she is carrying and she is, in fact, injured by the scalding water. The law of transferred intent, Tex. Penal Code § 6.04(b)(1), might arguably enable the state to prove an intentional assault (if that is all the state alleged), even without proof the defendant intended her to be burned or injured (because he intended only an offensive touching). But particularly if the indictment merely tracks the statutory language of Tex. Penal Code § 25.07(a)(1) and (g)(2)(B), the use of transferred intent is not necessary for the state to meet its burden.

To accommodate these and numerous other possible variations in which the state may prove family violence and assault, the Committee’s elements as listed below are broader than Villarreal’s hypothetically correct charge:

As with any other instruction, these elements should be tailored to the indictment and the evidence. So, for example, if there is no evidence that the defendant recklessly caused injury, it should not be submitted to the jury.

Definitions of “Family Violence” and “Assault.” The Committee recognizes that its approach to the elements, while similar to Villarreal’s hypothetically correct charge, differs from that of traditional jury instructions. Traditional instructions usually define the offense as intentionally or knowingly committing “family violence” and committing an “assault” and then provide complete abstract definitions of those terms. The Committee determined that it would aid both practitioners and juries to accurately incorporate the requirements of both these terms into the list of elements, rather than leaving the parties or jury the task of determining what is redundant or inapplicable. Neither “family violence” nor “assault” is separately defined in the instruction since both terms are already made an integral part of the elements, just as the court of criminal appeals did in its hypothetical charge in Villarreal. Villarreal, 286 S.W.3d at 327. Nevertheless, if a judge wanted to include such definitions (tailored to the case), they might be sensibly incorporated into the relevant statutes unit of the charge, following a revised statement of the offense using the statutory terms.

Physical Harm. Another way the defendant may commit family violence is through an act against a family or household member that is intended to result in “physical harm.” Tex. Fam. Code § 71.004(1). That term is undefined in the Texas Family Code, and there appear to be no cases construing it. Presumably, it was included in the definition of family violence alongside intent to result in “bodily injury” because it meant something other than “bodily injury.” However, it may be narrower, not broader. See, e.g., Restatement (Second) of Torts § 7 cmt. b (1965) (“‘Harm’ implies a loss or detriment to a person. . . . In so far as physical changes have a detrimental effect on a person, that person suffers harm.”); Sondag v. Pneumo Abex Corp., 55 N.E.3d 1259, 1265 (Ill. App. Ct. 2016) (describing plaintiff in asbestos litigation as having abnormal lung X-rays but no clinical symptoms, and thus no “physical harm” despite an impairment of physical condition). In most situations, it will likely have the same meaning as bodily injury. Because it is part of the definition of “family violence,” it has been included in the instruction, although it should not be defined. Neither should the definition of “harm” from Tex. Penal Code § 1.07 be included in the instruction; it is far too broad to be applicable in this context.

Family Violence by Threat. Where a threat is involved, the definition of family violence does not require either that the defendant actually cause injury or intend to cause injury. Boyd v. Palmore, 425 S.W.3d 425, 430 (Tex. App.—Houston [1st Dist.] 2011, no pet.); Clements v. Haskovec, 251 S.W.3d 79, 85 (Tex. App.—Corpus Christi–Edinburg 2008, no pet.). As the Committee saw it, the only potential difference between an assault by threat and an act of family violence by threat is that the latter spells out the requirement that the threat must “reasonably place the [family/household] member in fear of imminent . . . bodily injury.” Tex. Fam. Code § 71.004(1). Consequently, the elements of that manner and means are simpler:

More complex versions could be imagined by pairing an intentional or knowing commission of family violence by threat and a reckless assault by causing bodily injury, but these seemed less likely and so are not provided for in the instructions.

Status of “Defensive Measures to Protect Oneself” and “Except [Communication] through the Family or Household Member’s Attorney or Person Appointed by the Court.” Two of the means of violating a protective order, Tex. Penal Code § 25.07(a)(1) and (a)(2)(C), include qualifying language that, in isolation, might suggest it is an exception the state would have to negate (as an element) or a defense. The first—violating a protective order by committing family violence—incorporates the Family Code definition of “family violence,” which excludes “defensive measures to protect oneself.” Tex. Fam. Code § 71.004 (“‘Family violence’ means [certain acts against family or household members] . . . but does not include defensive measures to protect oneself.”).

Some courts have assumed that “defensive measures to protect oneself” is a reference to self-defense. See Poteet v. Sullivan, 218 S.W.3d 780, 794 (Tex. App.—Fort Worth 2007, pet. denied) (lawsuit against police department performing a family violence civil standby); see also Carson v. Carson, No. 07-16-00311-CV, 2017 WL 4341456, at *3 (Tex. App.—Amarillo Sept. 29, 2017, no pet.) (not designated for publication) (rejecting challenge to sufficiency of evidence to support issuance of protective order in part because of some evidence a rational fact finder could reject self-defense). The phrase is not used elsewhere in Texas statutes outside the context of family violence. See Tex. Fam. Code § 71.0021 (excluding “a defensive measure to protect oneself” from definition of “dating violence”).

The second use of qualifying language is in section 25.07(a)(2)(C), communication by any means, which excepts communication through the protected person’s (or family member’s) attorney or a person appointed by the court. Tex. Penal Code § 25.07(a)(2)(C) (an offense is committed if “the person knowingly or intentionally . . . communicates . . . in any manner . . . except through the person’s attorney or a person appointed by the court”). It is extremely rare in the Texas Penal Code for the section of a statute setting out the elements of the offense to include a phrase beginning with “except.” The only other instance the Committee is aware of (outside of definitions such as “motor vehicle” in Tex. Penal Code § 32.34) is in “Prohibited Substances and Items in Correctional or Civil Commitment Facility.” See Tex. Penal Code § 38.11(a)(1), (a)(5). In section 25.07, it appears to function like an exception. See Black’s Law Dictionary (11th ed. 2019) (defining “exception” to include “a provision in a statute exempting certain persons or conduct from the statute’s operation”).

Nevertheless, based on statute and case law, both qualifiers in section 25.07 must be defenses and not exceptions. Under Tex. Penal Code § 2.02(a), exceptions are expressly labeled, except for some statutes enacted prior to the 1974 Penal Code, which does not apply to the Code’s section on violation of a protective order. See Tex. Penal Code § 2.02(a); Baumgart v. State, 512 S.W.3d 335, 343 (Tex. Crim. App. 2017). As the court of criminal appeals explained in Baumgart, “[I]f a defensive matter does not use the exact wording outlined in § 2.02(a) [‘It is an exception to the application of . . . ’] (or the exact wording outlined in § 2.04(a) [‘It is an affirmative defense to prosecution . . . ’]), then it is not an exception (or affirmative defense) but is a defense that is governed by § 2.03.” Baumgart, 512 S.W.3d at 344 (holding that the phrase “does not apply to” in the Private Security Act set out a defense and not an exception). Thus, the jury should not be instructed on these matters unless raised by the evidence. For family violence allegations raising an issue of self-defense, a jury charge on self-defense should be included. The defense of communication through an attorney or court-appointed person is included in CPJC 25.3.

Going to or Near a Particular Place—Description of Place. Section 25.07(a)(3) makes it an offense to intentionally or knowingly go to or near, for example, a protected person’s residence or business “as specifically described in the order or condition of bond.” Tex. Penal Code § 25.07(a)(3). It is not certain whether this last phrase creates an additional requirement (i.e., prohibiting going to or near a residence that is specifically described in the order or bond condition) or is merely descriptive (i.e., prohibiting going to or near a residence consistent with how it is specifically described in the order or bond condition). At least one court of appeals has held the former. Dukes v. State, 239 S.W.3d 444, 449 (Tex. App.—Dallas 2007, pet. ref’d) (citing Tex. Fam. Code § 85.022(c); Tex. Code Crim. Proc. art. 17.292(e)); see also Dunn v. State, 497 S.W.3d 113, 115 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d) (setting out elements as: “the person knowingly or intentionally goes to or near the residence of a protected individual or a member of the family or household and that residence is specifically described in the order”). The Committee determined to track the language of the statute instead of requiring separate elements that the place be specifically described. Tex. Penal Code § 25.07(f) does not imply that a level of specificity is an element of the offense.

Section 85.007 allows for the textual exclusion from the order of a protected person’s residential address and telephone number, as well as those of her place of employment or business or a child care facility or school where a protected child attends or resides. Tex. Fam. Code § 85.007. Article 17.292(e) allows the magistrate to avoid specifically describing the prohibited locations and minimum distances to maintain if “the magistrate determines for the safety of the person or persons protected by the order that specific descriptions of the locations should be omitted.” Tex. Code Crim. Proc. art. 17.292(e). Tex. Penal Code § 25.07(f) provides that it is not a defense to prosecution under this section that certain information has been excluded, as provided by section 85.007 of the Family Code or article 17.292 of the Code of Criminal Procedure. This makes sense as the focus of the statutory provisions is not the protection of a location’s land and fixtures; the focus is the protection of the property’s use as the residence of a protected person. Dukes, 239 S.W.3d at 449. Cf. Patton v. State, 835 S.W.2d 684, 688–89 (Tex. App.—Dallas 1992, no pet.) (protective order was not invalid because it did not specifically describe protected individual’s place of employment nor state that the address was omitted pursuant to statutory requirement). Because the defendant is required to know the status of the place he visits (i.e., it is the protected individual’s residence or place of employment), this alleviates the due process and fairness concerns, even if he was not put on notice of the particular address from which he must stay away.

No published decision has dealt with whether (or how) a trial court should charge the jury regarding the non-defense set forth in Tex. Penal Code § 25.07(f). It is similar to the statute providing it is no defense to an attempted crime that the crime was actually completed. See Tex. Penal Code § 15.01(c). Like the Committee’s instruction for attempt, discussed at CPJC 15.3, an instruction under section 25.07(f) should not be given unless it is raised by the evidence.

Section 25.07(f), however, appears to be qualified. It seems to require that exclusion of a specific description be “as provided” by the relevant statutes. An omission due to oversight (rather than because a magistrate made a legal determination under one of the statutes) would presumably not be enough to warrant the instruction. However, it is not clear who has the burden of production on this issue. The Committee concluded that since the existence of a specific description appears to be an element of the offense anyway and the state is the beneficiary of the non-defense under Tex. Penal Code § 25.07(f), it should be up to the state to point to evidence that Tex. Fam. Code § 85.007 or Tex. Code Crim. Proc. art. 17.292 is the reason for the exclusion of information. This should not be an onerous burden as the state frequently calls witnesses to testify about issuance of the order to prove the defendant’s knowledge of its existence. Sometimes recitals in the order itself (such as a finding that the exclusions are made for safety of the victim) may explain why such descriptions are absent. At the same time, the defendant should not be permitted to collaterally challenge the propriety of the magistrate’s decision to exclude such information under those provisions. In most circumstances, a collateral attack on a protective order is not permitted. See, e.g., Nielsen, 2020 WL 1808574, at *5; Hoopes v. State, No. 03-16-00258-CR, 2018 WL 1977121, at *2 n.15 (Tex. App.—Austin Apr. 27, 2018, pet. ref’d) (not designated for publication); Rogers v. State, No. 09-15-00270-CR, 2017 WL 2698038, at *3 (Tex. App.—Beaumont Mar. 23, 2017, no pet.) (not designated for publication); Perez v. State, No. 08-15-00253-CR, 2017 WL 1955338, at *3 (Tex. App.—El Paso May 11, 2017, pet. ref’d) (not designated for publication).

The following recommended instruction has been included in the instruction on going to or near a particular location based on Tex. Penal Code § 25.07(a)(3):

Proof of Violation of the Order—Analogy to Contempt.  In order to sentence an individual to confinement for contempt of a prior court order, the order must be “unequivocal to be sufficient.” Lee v. State, 799 S.W.2d 750, 752 (Tex. Crim. App. 1990) (citing Ex parte Taylor, 777 S.W.2d 98, 101 (Tex. Crim. App. 1989); Ex parte Slavin, 412 S.W.2d 43, 44 (Tex. 1967)). A court cannot punish someone for contempt of an order that did not command him to do or not to do some specific act. Lee, 799 S.W.2d at 752. The question, therefore, arose whether the jurisprudence regarding contempt should be applied to prosecutions for violation of a protective order. However, the court of criminal appeals has held that Tex. Penal Code § 25.07 is directed toward the misconduct proscribed, rather than the court’s authority to enforce its own order. As such, section 25.07 represents a separate and distinct offense enacted to provide an alternative or additional method of enforcing the protective orders themselves. Lee, 799 S.W.2d at 753.

Consequently, “it is not necessary that the underlying protective order be specific enough to support a judgment of contempt; it is only necessary that it be specific enough to meet the normal requirements of specificity that attach to allegations of culpable conduct.” Collins v. State, 955 S.W.2d 464, 467 (Tex. App.—Fort Worth 1997, no pet.) (citing Lee, 799 S.W.2d at 752–54).

Repeated Violation of Protective Order or Condition of Bond—Separate Offense. Section 25.072 sets forth an offense that is relatively straightforward: “A person commits an offense if, during a period that is 12 months or less in duration, the person two or more times engages in conduct that constitutes an offense under Section 25.07.” Tex. Penal Code § 25.072(a). It is the apparent intent of the legislature that an indictment under section 25.072 should encompass all of the conduct that could be the subject of the indictment. The statute provides that a defendant may not be convicted in the same criminal action of another offense, an element of which is any conduct that is alleged as an element of the offense, subject to some exceptions. Tex. Penal Code § 25.072(c). The statute also provides that a defendant may not be charged with more than one count for the offense if all of the specific conduct that is alleged to have been engaged in is alleged to have been committed in violation of a single court order or single setting of bond. Tex. Penal Code § 25.072(d). See State v. Maldonado, 523 S.W.3d 769, 775–76 (Tex. App.—Corpus Christi–Edinburg 2017, no pet.) (drawing analogy from continuous sexual abuse and continuous family violence offenses).

Repeated Violation of Protective Order or Condition of Bond—Unanimity. In a prosecution under section 25.072, the trier of fact must agree unanimously that the defendant, during a period that was twelve months or less in duration, two or more times engaged in conduct that constituted an offense under section 25.07. Tex. Penal Code § 25.072(b). However, courts have analogized to previous holdings regarding the offense of continuous sexual abuse in holding that jurors do not need to be unanimous as to the specific acts that constitute the offense. They only need to be unanimous that two or more of those acts were committed during a time period that was twelve months or less. Diaz v. State, 549 S.W.3d 896, 897–900 (Tex. App.—Amarillo 2018, no pet.) (trial court instructed jurors that they were not required to agree unanimously on which specific acts were committed by the defendant or the exact date when those acts were committed, but that they were required to agree unanimously that the defendant, during a period of time that was twelve months or less in duration, violated a court order two or more times under section 25.07).