25.9 Instruction—Repeated Violation of Protective Order by Communicating or Going to or Near

Law Specific to this Case

The state accuses the defendant of having committed the offense of repeated violation of a protective order.

Relevant Statutes

A person commits an offense if a protective order was issued under [specify authority, e.g., chapter 85 of the Texas Family Code] following a hearing that the person attended or that was held after the person received notice or service of an application for a protective order and notice of the hearing, and thereafter at least twice during a period of twelve months or less, the person intentionally or knowingly either—

(1)     communicates with [insert specifics, e.g., an individual protected by the protective order/a family or household member of an individual protected by the protective order] when the protective order prohibits any communication with such an individual, or

(2)     goes to or near a protected individual’s [insert particulars, e.g., place of employment], as specifically described and prohibited in the protective order.

Definitions

Intentionally Communicates with Another

A person intentionally communicates with another when it is his conscious objective or desire to communicate with another.

Knowingly Communicates with Another

A person knowingly communicates with another when he is aware that his conduct constitutes communication with another.

Knows that Another Is a Member of the Protected Person’s Family or Household

A person knows that another is a member of the protected person’s family or household when he is aware that the person is a member of the protected person’s family or household.

Intentionally Go to or Near a Location

A person intentionally goes to or near a location when it is his conscious objective or desire to go to or near that location.

Knowingly Go to or Near a Location

A person knowingly goes to or near a location when he is aware that he is going to or near that location.

Knowing a Location Was the Protected Person’s [insert specifics, e.g., Place of Employment]

A person knows a location is the protected person’s [insert specifics, e.g., place of employment] when he is aware that the location is the protected person’s [insert specifics, e.g., place of employment].

Family

A “family” includes individuals related by consanguinity or affinity, former spouses of each other, individuals who are the parents of the same child, and foster child and parent.

Related by Consanguinity

Two individuals are “related to each other by consanguinity” if one is a descendant of [or shares a common ancestor with] the other.

Related by Affinity

Two individuals are “related to each other by affinity” if one is married to the other or the person’s spouse is related by consanguinity to the other individual. [A marriage’s end by divorce or a spouse’s death ends relationships by affinity that the marriage created unless a child of that marriage is living, in which case the marriage is considered to continue as long as a child of that marriage lives.]

Household

A “household” means a unit composed of persons living together in the same dwelling, without regard to whether they are related to each other.

[Include where raised by the evidence.]

Member of a Household

A “member of a household” or “household member” includes a person who previously lived in a household.

Application of Law to Facts

You must determine whether the state has proved, beyond a reasonable doubt, four elements. The elements are that—

1.     a protective order was issued by [name of issuing judge] of the [name and number of court] of [county] County, Texas on [date] under authority of [specify authority, e.g., chapter 85 of the Texas Family Code] and named [protected person’s name] as a protected individual;

2.     the defendant had knowledge of the protective order, attended the hearing in which the order was issued, had notice of that hearing, or was otherwise aware of the proceedings against him;

3.     the defendant, in [county] County, Texas, engaged in two or more of the following—

a.     on or about [date]:

i.     the defendant intentionally or knowingly communicated with [name] [insert specific manner alleged: by calling and texting [name]];

ii.     [name] was a member of [protected person’s name]’s family or household;

iii.     the defendant knew that [name] was a member of [protected person’s name]’s family or household; and

iv.     the defendant’s communication was in violation of the protective order; or

b.     on or about [date]:

i.     the defendant intentionally or knowingly went to or near [specify location, e.g., 123 Riverside Drive, Austin, TX 78701] [insert specifics, e.g., by going within 200 feet of that location];

ii.     [specify location, e.g., 123 Riverside Drive, Austin, TX 78701] was then [insert specifics, e.g., the place of employment] of [name];

iii.     the defendant knew it was [name]’s [insert particulars, e.g., place of employment]; and

iv.     the protective order prohibited the defendant from going to or near [insert specifics, e.g., the protected person’s place of employment] as specifically described in the order;

[Add additional allegations under this element as appropriate if they provide a basis for the defendant’s commission of the offense.]

4.     the defendant engaged in two or more of the instances set forth in element 3 during a period that was twelve months or less in duration.

You must all agree on elements 1, 2, 3, and 4 listed above.

[Include only if submitting more than two allegations or instances of conduct under element 3.]

With regard to element 3, you do not need to all agree on which specific conduct was committed by the defendant, if any, or the exact date when each instance of conduct occurred. You must all agree, however, that the defendant committed two or more instances of conduct alleged in element 3.

[Continue with the following.]

You must all agree that at least two proven instances of conduct from element 3 occurred during a period of twelve months or less in duration.

If you all agree the state has failed to prove, beyond a reasonable doubt, any of the elements listed above, you must find the defendant “not guilty.”

If you all agree the state has proved, beyond a reasonable doubt, each of the four elements listed above, you must find the defendant “guilty.”

[Insert any other instructions raised by the evidence, including the defense of communicating through an attorney or court-appointed person as set out in CPJC 25.3. Then continue with the verdict form found in CPJC 2.1, the general charge.]