Stalking is a felony in Texas. It does not require physical contact. It does not require a threat of violence. It does not require that the defendant and the alleged victim have any prior relationship. Under Penal Code §42.072, a person commits stalking by engaging in a course of conduct directed at a specific person that the defendant knows or reasonably should know the other person will regard as threatening. The offense is broad, the elements are subjective, and the consequences are severe: a third-degree felony for a first offense, a second-degree felony for a repeat offense or for stalking in violation of a protective order.
Stalking charges frequently arise from situations that are far more ambiguous than the word “stalking” suggests: breakups where one party keeps trying to communicate, custody disputes where a parent monitors the other parent’s activities, workplace conflicts that spill into after-hours contact, neighbor disputes that escalate over time, or social media interactions that one party experiences as harassing and the other party considers ordinary. The line between persistent and criminal is not always obvious, and that ambiguity is exactly where the defense operates.
The Offense: Texas Penal Code §42.072
Under §42.072(a), a person commits stalking if, on more than one occasion and pursuant to the same scheme or course of conduct directed specifically at another person, the person knowingly engages in conduct that:
- (1) Constitutes an offense under §42.07 (harassment) or §42.072 (stalking); or
- (2) The actor knows or reasonably should know the other person will regard as threatening: (A) bodily injury or death for the other person; (B) bodily injury or death for a member of the other person’s family or household; or (C) an offense against the other person’s property
Additionally, the conduct must be such that it would cause a reasonable person to fear bodily injury or death for themselves or a family/household member, or fear that an offense will be committed against their property and actually does cause the alleged victim to experience that fear.
The statute has several critical elements that the prosecution must prove beyond a reasonable doubt, and each one is a potential defense target.
The Elements the Prosecution Must Prove
1. Course of Conduct: More Than One Occasion
Stalking requires proof of conduct on more than one occasion. A single act (no matter how threatening) is not stalking under §42.072. A single threatening text message might be harassment under §42.07, but it is not stalking. The prosecution must prove at least two separate acts that are part of the same scheme or course of conduct directed at the same person.
This element creates a clear defense threshold: if the prosecution can establish only one qualifying act, the stalking charge fails. The defense should scrutinize each alleged act individually, challenge whether it meets the statutory requirements, and determine whether the prosecution has actually proven more than one qualifying occurrence.
2. Knowledge: Knew or Reasonably Should Have Known
The defendant must have known, or reasonably should have known, that the other person would regard the conduct as threatening. This is a hybrid standard: partly subjective (what did the defendant actually know?) and partly objective (what would a reasonable person in the defendant’s position have understood?).
This element is where the Counterman v. Colorado, 600 U.S. 66 (2023) recklessness standard applies. The Supreme Court held that true threat prosecutions require the prosecution to prove at minimum that the defendant was reckless as to whether their communications would be perceived as threatening. The defendant need not have intended to threaten but they must have been aware of and consciously disregarded a substantial risk that their conduct would be perceived as threatening.
A defendant who genuinely did not understand that their conduct was being perceived as threatening (because of neurodivergence, cultural differences, mental health conditions, or simply because the communications did not contain objectively threatening content) may have a viable defense on this element.
3. Reasonable Fear
The prosecution must prove both that the conduct would cause a reasonable person to fear bodily injury, death, or property offense and that it actually did cause the alleged victim to experience that fear. Both prongs must be satisfied.
The objective prong (would a reasonable person fear?) prevents the statute from reaching conduct that is annoying or unwanted but not genuinely threatening. The subjective prong (did this victim actually fear?) requires the prosecution to prove the alleged victim’s actual emotional state, typically through their testimony. Both prongs are defensible: the defense can argue that the conduct was not objectively threatening (a reasonable person would not have feared bodily injury from the defendant’s actions), or that the alleged victim’s claimed fear was not genuine (the victim continued to engage with the defendant, did not seek a protective order, did not call the police, or exhibited behavior inconsistent with genuine fear).
4. Directed at a Specific Person
The conduct must be directed at a specific person. General social media posts that do not name or identify the alleged victim, conduct directed at the public generally, or behavior that is not targeted at a particular individual does not satisfy this element. The defense should evaluate whether the prosecution can establish that each alleged act was actually directed at the specific complainant.
Penalty Classifications
Third-Degree Felony (Default)
Stalking under §42.072 is a third-degree felony: 2 to 10 years in prison and a fine of up to $10,000. This is the default classification for a first stalking offense.
Second-Degree Felony (Enhanced)
Stalking is elevated to a second-degree felony (2–20 years) if the defendant has a prior conviction for stalking, or if the stalking was committed in violation of a protective order, a bond condition, or a condition of community supervision. The enhancement applies regardless of whether the prior conviction involved the same victim.
The second-degree enhancement for violation of a protective order creates significant additional exposure for defendants in domestic situations. A person who has a protective order against them and continues to engage in conduct directed at the protected person can face both a stalking charge (second-degree felony) and a protective order violation charge (§25.07, Class A misdemeanor for first violation, third-degree felony for second).
Common Factual Patterns in Texas Stalking Cases
Post-Breakup Communication
The most common stalking prosecution involves a person who continues to contact an ex-partner after the relationship ends. Repeated text messages, phone calls, showing up at the ex-partner’s home or workplace, sending messages through mutual friends, or monitoring the ex-partner’s social media can all form the basis of a stalking charge. The line between persistent attempts at reconciliation and criminal conduct depends on the content of the communications, the frequency, the defendant’s response to requests to stop, and whether the conduct would cause a reasonable person to fear bodily injury.
The defense in these cases often focuses on the nature of the communications (were they actually threatening, or were they expressions of sadness, frustration, or a desire to reconcile?), the alleged victim’s responses (did the victim respond to the contacts, initiate contacts of their own, or exhibit behavior inconsistent with genuine fear?), and the *Counterman* recklessness standard (did the defendant consciously disregard the risk that the contacts would be perceived as threatening?).
Custody Disputes
Stalking charges frequently emerge during contentious custody battles. One parent accuses the other of monitoring their movements, showing up at locations where the children are present, tracking the other parent’s social media activity, or contacting the other parent’s friends and family. In many of these cases, the accused parent believes their conduct is justified by concern for the children and does not understand that it crosses a criminal line.
The defense must examine the timing of the accusation relative to the custody proceedings (was the stalking allegation filed shortly before or during a custody hearing?), whether the defendant’s conduct was related to legitimate parental interests, and whether the alleged victim’s claimed fear is genuine or strategic.
Workplace and Neighbor Disputes
Escalating conflicts between coworkers, former coworkers, or neighbors can produce stalking charges. Repeated confrontations, hostile communications, monitoring, or showing up uninvited at the other person’s location can satisfy the statutory elements if the conduct is threatening in nature and occurs on more than one occasion. These cases often involve mutual hostility, making the question of who is the “stalker” and who is the “victim” less clear-cut than the prosecution presents.
Digital Stalking and Cyberstalking
An increasing number of stalking prosecutions are based entirely on digital conduct: repeated messages through social media platforms, creating multiple accounts to contact someone who has blocked the defendant, posting about the alleged victim online, tracking the alleged victim’s location through shared apps or devices, or using technology to monitor their communications.
Digital stalking cases present unique defense opportunities. Text-based communication lacks tone and context. A message that the sender intended as benign may be perceived as threatening by the recipient. The defense must examine the full digital record (not the cherry-picked screenshots the prosecution presents) to establish context, tone, and the nature of the communications. Digital forensics experts that work with our team can try to recover deleted messages, establish conversation timelines, examine metadata, and present the complete communication record to the jury rather than the prosecution’s selected excerpts.
Defenses to Stalking Charges
First Amendment Protected Speech
The First Amendment protects speech, including speech that is offensive, unwelcome, or distressing. Stalking prosecutions based on speech (text messages, social media posts, emails, verbal statements) must satisfy the Counterman v. Colorado recklessness standard. The prosecution must prove that the defendant was at least reckless as to whether their communications would be perceived as threatening. Speech that is merely annoying, insulting, or persistent but not threatening is constitutionally protected and cannot form the basis of a stalking conviction.
The defense should evaluate every communication the prosecution relies on and determine whether it contains an actual threat of bodily injury, death, or property offense or whether it is non-threatening speech that the alleged victim found unwelcome. Unwelcome is not the same as threatening, and the First Amendment protects the difference.
Failure to Prove Course of Conduct
If the prosecution can establish only one qualifying act, the stalking charge fails. The defense should challenge each alleged act individually: Does this act constitute harassment under §42.07? Does this act involve conduct the defendant knew or should have known would be perceived as threatening? Is this act part of the same scheme or course of conduct, or is it an isolated event separated by time and circumstance from the other alleged acts? Fragmenting the prosecution’s narrative into individual acts and challenging each one independently can reduce the case below the statutory threshold.
Lack of Knowledge or Recklessness
The defendant must have known or reasonably should have known that the conduct would be regarded as threatening. If the defendant genuinely did not understand that their conduct was being perceived as threatening (and a reasonable person in the defendant’s position would not have understood it either) the knowledge element is not satisfied. Evidence of the defendant’s mental state, the content and tone of the communications, the relationship context, and the defendant’s response to any prior requests to stop contact are all relevant to this element.
The Alleged Victim’s Fear Was Not Reasonable or Not Genuine
The prosecution must prove both that a reasonable person would have feared bodily injury and that the alleged victim actually experienced that fear. The defense can challenge both prongs. If the alleged victim continued to respond to the defendant’s contacts, initiated contacts of their own, made social media posts mocking or taunting the defendant, failed to report the conduct to police for an extended period, or did not seek a protective order, these facts may be inconsistent with genuine fear and may undermine the reasonableness of the claimed fear.
False Accusation and Motive
Stalking charges are susceptible to fabrication because the offense requires no physical evidence. The prosecution’s case may rest entirely on the alleged victim’s account of their subjective experience of fear. In custody disputes, relationship breakdowns, property disputes, and workplace conflicts, the incentive to exaggerate or fabricate a stalking claim can be significant. The defense must investigate the alleged victim’s motive, the timing of the complaint relative to other proceedings, and any evidence of fabrication or exaggeration.
Mutual Conduct
In many stalking cases, the communications and conduct were mutual. Both parties sent messages, both parties showed up at locations, and both parties engaged in the conflict. While mutual conduct does not automatically negate a stalking charge, it can undermine the prosecution’s narrative that the defendant was the aggressor and the alleged victim was a passive, fearful recipient. Presenting the full record of mutual interaction provides context that challenges the prosecution’s characterization of the defendant as a stalker.
Stalking’s Relationship to Other Offenses
Harassment: §42.07
Harassment under §42.07 is a lesser offense that involves a single act of threatening, obscene, or repeated electronic communication. Harassment is a Class B misdemeanor (up to 180 days in jail) for a first offense and a Class A misdemeanor with prior convictions. The defense may argue that the defendant’s conduct, even if criminal, constitutes harassment rather than stalking thus reducing the exposure from a felony to a misdemeanor.
Terroristic Threat: §22.07
If the defendant’s conduct included threats of violence, the prosecution may charge terroristic threat in addition to or instead of stalking. As we have discussed in our separate article on terroristic threat charges, §22.07 requires a threat to commit a violent offense with specific intent to cause one of six listed results. The defense strategies for terroristic threats (First Amendment, lack of specific intent, context and hyperbole) overlap with stalking defenses, and the two charges often appear together in the same case.
Protective Order Violation: §25.07
If the stalking conduct violates an existing protective order, the defendant faces both the stalking charge (elevated to second-degree felony) and a separate protective order violation charge. The protective order violation is a Class A misdemeanor for a first offense and a third-degree felony for a second offense or if the violation involves an assault. The defense must address both charges, often through a unified strategy that challenges the underlying conduct.
Digital Forensics in Stalking Cases
The vast majority of modern stalking cases involve digital evidence: text messages, social media interactions, email, location tracking, and app-based communications. The prosecution presents this evidence as a narrative of threatening conduct. But digital evidence is only as reliable as the context in which it is presented.
Doug Huff’s digital forensics training gives our defense team the ability to better evaluate the digital evidence in stalking cases. This includes recovering deleted messages that provide context the prosecution omitted, establishing the full chronology of communications (including messages initiated by the alleged victim), examining metadata to determine when and where communications were sent, identifying whether accounts or devices were accessed by someone other than the defendant, and presenting the complete digital record to the jury rather than the prosecution’s curated excerpts.
In stalking cases built on digital evidence, the difference between conviction and acquittal often comes down to whether the jury sees the defendant’s communications in isolation or in their full context. The prosecution wants the jury to see a series of threatening messages. The defense wants the jury to see a two-sided conversation in which the alleged victim was an active participant.
Stalking Defense at Deandra Grant Law
Stalking charges are serious felonies that carry 2 to 20 years in prison and the permanent stigma of a violent felony conviction. But they are also among the most defensible charges in Texas criminal law because the elements are subjective, the evidence is often digital, and the line between persistent and criminal is frequently contested. A defense built on the Counterman recklessness standard, a thorough analysis of each alleged act in the course of conduct, and a forensic examination of the digital evidence can challenge the prosecution’s case at every element.
At Deandra Grant Law, we combine Doug Huff’s forensic science credentials and digital forensics capability with our team’s deep experience in assault, family violence, and protective order defense. Stalking charges frequently intersect with family violence cases, protective order proceedings, and custody disputes and our understanding of all of these areas gives our stalking defense clients a comprehensive and coordinated defense strategy.
With offices in Dallas, Fort Worth, Allen, Denton, Waco, and Rockwall, we defend stalking charges across North Texas. Call (214) 225-7117 or visit texasdwisite.com for a confidential consultation.
