Harvey Notice Elements Omitted Without Egregious Harm | Rains v. State (2025)

Rains v. State, 03-24-00585-CR, June 17, 2026.

On appeal from 22nd District Court of Comal County

Synopsis

In a prosecution for repeated violation of a Chapter 85 protective order, the Third Court of Appeals said the jury charge should have required proof that the Respondent was served with the protective-order application and received notice of the hearing, consistent with Harvey v. State. But because there was no objection to the charge, reversal required egregious harm under Almanza, and the court held that standard was not met on this record.

Relevance to Family Law

Although this is a criminal appeal, its practical importance for Texas family-law litigators is immediate. Chapter 85 protective orders often become the bridge between family litigation and criminal enforcement, and Rains underscores that the enforceability story begins with the family-law record: service of the application, notice of hearing, appearance at hearing, and proof that the signed order was later served. In divorce, SAPCR, and protective-order practice, the more disciplined the service and hearing record, the more durable the order will be when later used in a criminal prosecution for alleged violations.

Case Summary

Fact Summary

After a domestic-violence call in November 2021, the protected person applied for a family-violence protective order. On February 16, 2022, the trial court heard the application. The opinion states that both the protected person and the Respondent appeared in person and announced ready. The trial court then entered a Family Violence Protective Order under Chapter 85 of the Family Code, and among other terms, it prohibited the Respondent from communicating with the protected person except through the applicant’s attorney or a person appointed by the court.

A few days later, according to the opinion, the Comal County Sheriff’s Office served the protective order on the Respondent while he was in the Comal County Jail. The State then prosecuted him for repeated violation of a protective order based on phone communications with the protected person on several dates in March and April 2022. At trial, recorded jail calls were played for the jury. Neither side objected to the jury charge, and the jury convicted.

On appeal, the Respondent challenged the charge because it did not define the phrase “in violation of a protective order” and did not require the jury to find that he had been served with the protective-order application and given notice of the protective-order hearing. The opinion also notes an Eighth Amendment complaint about the life sentence, but the court stated that claim was unpreserved.

Issues Decided

• Whether the jury charge in a prosecution under Penal Code sections 25.072 and 25.07, based on a Chapter 85 protective order, should define “in violation of a protective order” to include service of the application and notice of the hearing.
• Whether the application paragraph should require the jury to find that the Respondent received service of the protective-order application and notice of the hearing.
• Whether omission of those Harvey elements required reversal absent an objection, under the egregious-harm standard of Almanza.
• Whether the Respondent’s Eighth Amendment complaint about his sentence was preserved.

Rules Applied

The court relied on the standard two-step jury-charge framework: first determine whether there is charge error, then assess harm. It cited Kirsch v. State for reviewing alleged jury-charge error regardless of preservation, Ngo v. State for the threshold error inquiry, and Alcoser v. State for the rule that when there is no timely objection, the record must show egregious harm. The court also cited Olivas v. State for the four Almanza factors: the charge itself, the state of the evidence, arguments of counsel, and other relevant record information.

On the substantive offense, the court quoted Penal Code section 25.072 for repeated violation of a protective order and Penal Code section 25.07(a)(2)(C) for communication with a protected individual in violation of a Chapter 85 order that has been served on the person.

Most importantly, the court applied Harvey v. State, where the Court of Criminal Appeals held that for orders issued under Chapter 85, the offense requires proof that the respondent was served with the application and received notice of the protective-order hearing. The opinion states that, under Harvey, the charge should define “in violation of an order” to mean violation of an order issued after a hearing held after the defendant received service of the application and notice of the hearing, and the charge should also include those facts as an element for the jury to find.

Application

The Third Court first found actual charge error. The abstract portion omitted the Harvey definition, and the application paragraph omitted the Harvey notice-and-service element. The court said both should have been included.

That did not end the analysis because trial counsel did not object. The court therefore moved to egregious harm. On the first Almanza factor, the court agreed the error was not cured elsewhere in the charge. On that point, the appellant had a legitimate complaint: both the definition and the element were omitted.

But the appeal turned on the rest of the record, especially the evidence. The court emphasized that the Respondent did not argue that he failed to receive service of the application or notice of the hearing. The opinion points to the protective order itself, which recited that the Respondent “appeared in person and announced ready.” The court also noted testimony from a sheriff’s deputy that the protective order itself was served on the Respondent at the county jail, and the trial court admitted both the return of service form and a certified copy of the protective order.

The court also looked at closing arguments. The defense did not focus on lack of notice of the Chapter 85 proceeding. Instead, the defense argued identity and proof problems concerning the calls, including that the protected person did not testify in that phase and that the calls were made to phone numbers not associated with her. The State, for its part, argued that the existence of the protective order was not really in dispute and referred the jury to the certified order in evidence.

In other words, the omitted Harvey elements were legally required, but they were not the live battleground at trial. The court treated that as significant in deciding whether the omission affected the very basis of the case or deprived the defendant of a valuable right under the egregious-harm standard.

Holding

The court held that the jury charge was erroneous because it failed to define “in violation of a protective order” in the manner required by Harvey v. State and failed to require the jury to find that the Respondent had been served with the protective-order application and had received notice of the hearing. For Chapter 85-based prosecutions under Penal Code sections 25.072 and 25.07, those matters should be included in the charge.

The court further held that the error did not warrant reversal because there was no objection in the trial court, so Almanza required egregious harm, and the court concluded that egregious harm was not shown on this record. The opinion points to the protective order’s recital that the Respondent appeared in person and announced ready, the deputy’s testimony that the protective order was served on him in jail, and the absence of any trial argument contesting service of the application or notice of hearing.

The court also stated that the Eighth Amendment challenge to the life sentence was unpreserved. The opinion therefore affirmed the conviction.

Practical Application

For family-law litigators, Rains is a reminder that protective-order practice should be built with downstream enforcement in mind. If you represent the applicant or protected person, the family-court file must plainly show service of the Chapter 85 application, notice of the hearing, the respondent’s appearance or nonappearance, and entry of the signed order. If a later criminal case follows, those details may become central to the charge and to the State’s proof under Harvey.

If you represent respondents in protective-order proceedings, Rains also matters. The case confirms that service of the application and notice of hearing are not merely background facts in a later criminal prosecution based on a Chapter 85 order; under Harvey, they are part of what the charge should submit to the jury. That means criminal and family counsel alike should pay close attention to the accuracy of returns, hearing notices, recitals in the order, and the record of appearances.

In divorce and SAPCR settings, where protective orders often run parallel to temporary orders, possession disputes, and communication restrictions, Rains reinforces a strategic point: the family-law record may later do the heavy lifting. A clean evidentiary trail can support enforcement; a thin one can create avoidable litigation over notice, service, and the order’s criminally enforceable status.

For trial lawyers handling the criminal side of a protective-order case, Rains is also a preservation case. The court found error, but the absence of an objection changed the appellate posture to egregious harm. If the Harvey language is missing, an objection matters.

Checklists

Chapter 85 Protective-Order Record Checklist

• Confirm the application was formally served on the Respondent.
• Confirm the record reflects notice of the hearing.
• Obtain and preserve the return of service.
• Make sure the hearing date is documented in the clerk’s record.
• If the Respondent appears, ensure the order recites that appearance accurately.
• If the Respondent does not appear, ensure the record still reflects service and notice.
• Secure a certified copy of the signed protective order.
• Confirm later service of the signed order is documented.

Trial Charge Preservation Checklist

• Compare the proposed charge against Harvey v. State when the prosecution is based on a Chapter 85 protective order.
• Request an abstract definition of “in violation of a protective order” that includes service of the application and notice of hearing.
• Request an application paragraph requiring the jury to find those Harvey facts.
• Object on the record if either the definition or the element is omitted.
• Tender a written requested instruction if appropriate.
• Obtain a ruling on the objection or requested charge language.

Evidence Checklist for Enforcement Cases

• Offer the protective order itself into evidence.
• Offer the return showing service of the signed order.
• Preserve proof of service of the original application.
• Preserve proof of notice of the Chapter 85 hearing.
• Highlight any recital in the order that the Respondent appeared and announced ready.
• Present testimony authenticating service records if needed.
• Organize the file so the service-and-notice story is easy for the trial court and jury to follow.

Respondent-Side Risk Review Checklist

• Review whether the record actually shows service of the application.
• Review whether the record actually shows notice of hearing.
• Examine the protective order for recitals regarding appearance.
• Compare the order and service documents for internal consistency.
• Raise charge complaints before the charge is read.
• Avoid relying solely on appellate harm review if a correctable charge error exists at trial.

Citation

Rains v. State, No. 03-24-00585-CR (Tex. App.—Austin June 17, 2026, no pet. h.) (mem. op.).

Full Opinion

Read the full opinion here

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