I need some help convincing the Judge that a Protective order application can be granted on old allegations (2 years ago) and/or could be based on a criminal trespass violation. Respondent committed criminal trespass of applicant's house. Base on past history she is afraid. Judge has concerns about whether or not criminal trespass is "family violence" any help would be great.

Well Keith, good luck. I don't think our judges would go with that, either. They'd want to know what is the current threat, why is there a belief that family violence is likely to occur. Need a little more than 'it happened two years ago'.

There has been a lot of documented threats with and without guns over the past 8 years with several of the family members testifying. The latest incident was a few months ago when the respondent allegedly broke into the applicant's house (criminal trespass). The judge is not sure that this is Family violence within the meaning of the Family Code. I think it is. but cannot find a case on point.

What is the relationship between the "stalker" and the victim? Did they have a prior dating relationship?

Ex-husband and ex-wife who had not lived together for about 6 years.

Keith, a recent break-in, yes I think I would be concerned, especially if the violence before included breaking in and being violent. But having it more than a month or so back, I am not sure it would be recent enough for our judges, if it stands alone. Have there been threats in the meantime? Why the time gap between the break in and the victim now asking for an FPO? Has there been a threat in the meantime? A break in a few months ago and threats of violence since then would do it for me.

A.D.

No violence at the time of the breakin. The applicant and respondent's daughter was present and ran to neighbor's house scared. When police arrived the respondent was no where to be found. He claims it was not him. We have already had a hearing. I think the judge belives that respondent was at the house (criminal trespas), I cannot prove that he was in the house to steal, at best to look around for some information. Based on all the previous family history, applicant is scared of respondent. Judge has concerns whether or not the criminal trespass meets the definition of "Family violence" (which) means:
(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

was the break in at night? stealth?

not at night.

Since 85.001 does not require that the finding of a likelihood of future violence depend wholly upon the act of violence itself, and because there are no time limitations specified for the violent act, you may want to try an approach that incorporates all the past and recent facts.

A judge may be hesitant due to some very old violence facts, but I think you could argue that you have met the statutory requirement of family violence through the old acts and have also satisfied the element that violence is likely to occur in the future based upon the recent property intrusion. If the victim was home, things could have gotten very ugly in a hurry.

In the end, those are the very reasons you are concerned about the victim's safety. While it presents an unusual case, a judge may decide it fits each prong of the statute and that it is better to be safe than sorry. Good luck.

Your old acts of violence lend credibility to the claim that the breaking in was seen by your victim as a threat to do her harm.

She's more likely to _reasonably_ believe that he intends to do her harm when he breaks in if he has done her harm in the past. Since the threat of violence doesn't have to be verbal, just credible under the circumstances, the past conduct supplies the credibility.

Doesn't it?