Nikolaj Zbikowski v. Sean Fluegge

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION

No. 04-24-00651-CV

Nikolaj ZBIKOWSKI,
Appellant

v.

Sean FLUEGGE,
Appellees

From the 37th Judicial District Court, Bexar County, Texas
Trial Court No. 2024-CI-13055
Honorable Kevin Henderson, Judge Presiding

Opinion by: Irene Rios, Justice

Sitting: Rebeca C. Martinez, Chief Justice
Irene Rios, Justice
Adrian A. Spears II, Justice

Delivered and Filed: December 10, 2025

AFFIRMED AS MODIFIED

Pro se appellant Nikolaj Zbikowski appeals a two-year protective order issued against him

for the protection of appellee Sean Fluegge, his brother-in-law, and Stasia Zbikowski, his sister

and Fluegge’s wife. Zbikowski’s appellate brief presents multifarious issues that are difficult to

comprehend. We construe Zbikowski’s arguments to include a challenge to (1) the issuance of a

temporary protective order because he did not receive notice of a hearing and no hearing was

conducted, and (2) the sufficiency of the evidence to support the trial court’s granting of the
04-24-00651-CV

protective order. For the reasons below, we modify the final protective order and affirm as

modified.

BACKGROUND

Police arrested Zbikowski in October 2019 following a physical altercation involving

Zbikowski, Fluegge, and Stasia. Zbikowski, Fluegge, Stasia, and Gale—Zbikowski’s and Stasia’s

mother—lived together in Gale’s house. In June 2024 and pursuant to section 82.002 of the Texas

Family Code, the Bexar County Criminal District Attorney’s Office filed an application for a

protective order on behalf of Fluegge naming Zbikowski as the respondent. See TEX. FAM. CODE

ANN.§ 82.002(d), (e).

On August 27, 2024, the trial court conducted a hearing at which Fluegge, Stasia, Gale,

and Zbikowski, acting pro se, testified. After considering all the evidence, the court issued an oral

ruling finding “the elements of the protective order have been met, and [the court is] granting a

protective order for a period of two years.”

The trial court then issued the written protective order the same day, finding, among other

things, Fluegge and Zbikowski were members of the same family or household, and family

violence occurred. The court prohibited Zbikowski from engaging in several enumerated acts, and

it set the duration of the protective order for a period of two years, or until August 27, 2026. Stasia,

in addition to Fluegge, was named as a protected person.

Following the trial court’s issuance of the protective order, Zbikowski filed a motion

seeking to vacate the order, which was overruled by operation of law. This appeal ensued.

COMPLAINTS REGARDING A TEMPORARY PROTECTIVE ORDER

We first address Zbikowski’s numerous complaints concerning a temporary protective

order, including his contention that he did not receive notice of a hearing, no hearing for a

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temporary protective order was conducted, and Fluegge did not sufficiently allege necessary facts

in his affidavit supporting his application for a protective order to exclude Zbikowski from the

family home.

Based on our review of the record, it is not clear whether a temporary protective order was

issued. Nonetheless, even if the trial court granted a temporary protective order, it has since expired

and been replaced by the final protective order. Generally, expired orders are considered moot on

appellate review. James v. Hubbard, 21 S.W.3d 558, 560 (Tex. App.—San Antonio 2000, no pet.).

Appellate courts lack jurisdiction to decide moot controversies. See Nat’l Collegiate Athletic Ass’n

v. Jones, 1 S.W.3d 83, 86 (Tex. 1999). Moreover, we do not have subject matter jurisdiction to

resolve complaints about temporary protective orders that have been superseded by a final

protective order. See Ford v. Harbour, No. 14-07-00832, 2009 WL 679672, at *2 (Tex. App.—

Houston [14th Dist.] Mar. 17, 2009, no pet.) (mem. op.); accord Lancaster v. Lancaster, No. 01-

14-00845-CV, 2015 WL 9480098, at *5 (Tex. App.—Houston [1st Dist.] Dec. 29, 2015, no pet.)

(mem. op.). Any temporary protective order in this case was superseded by the August 27, 2024

final protective order.

Therefore, we do not further address Zbikowski’s appellate issues as they pertain to a

temporary protective order because they are moot.

SUFFICIENCY OF THE EVIDENCE TO SUPPORT THE TRIAL COURT’S
GRANTING OF THE PROTECTIVE ORDER

A. Standard of Review and Applicable Law

We review the grant of a protective order for legal and factual sufficiency using the same

standard we use in evaluating the sufficiency of the evidence following a jury verdict. Hollimon v.

Williams, No. 01-22-00414-CV, 2023 WL 4710895, at *4 (Tex. App.—Houston [1st Dist.] July

25, 2023, pet. denied) (mem. op.); Yang v. Cao, 629 S.W.3d 666, 670 (Tex. App.—Houston [1st

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Dist.] 2021, no pet.). When, as here, a party who does not have the burden of proof at trial

challenges the legal sufficiency of the evidence, we consider the evidence in the light most

favorable to the prevailing party, indulging every reasonable inference in that party’s favor and

disregarding contrary evidence unless a reasonable factfinder could not. Yang, 629 S.W.3d at 670

(citing City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005)); City of Hous. v. Hildebrandt,

265 S.W.3d 22, 27 (Tex. App.—Houston [1st Dist.] 2008, pet. denied) (citing Assoc. Indem. Corp.

v. CAT Contracting, Inc., 964 S.W.2d 276, 285–86 (Tex. 1998)).

We may sustain a legal sufficiency, or “no evidence” point, only if the record demonstrates

(1) a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of

evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence

offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence conclusively

establishes the opposite of the vital fact. Gabel v. Gabel-Koehne, 649 S.W.3d 590, 599 (Tex.

App.—Houston [1st Dist.] 2022, no pet.) (citing City of Keller, 168 S.W.3d at 810). If more than

a scintilla of evidence exists to prove a vital fact, the evidence is legally sufficient, and we will

overrule the issue. Haggar Clothing Co. v. Hernandez, 164 S.W.3d 386, 388 (Tex. 2005);

Hildebrandt, 265 S.W.3d at 27. More than a scintilla of evidence exists if the evidence “rises to a

level that would enable reasonable and fair-minded people to differ in their conclusions.” Ford

Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004) (citing Merrell Dow Pharm., Inc. v.

Havner, 953 S.W.2d 706, 711 (Tex. 1997)).

For a party to successfully challenge the factual sufficiency of an adverse finding on an

issue wherein he did not have the burden of proof, he must demonstrate that the adverse finding is

so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.

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Hollimon, 2023 WL 4710895, at *4. In conducting a factual sufficiency review, we examine,

consider, and weigh all evidence that supports or contradicts the factfinder’s determination. Id.

“It is the [factfinder’s] role to resolve conflicts in the evidence, and we may not substitute

our judgment for that of the [factfinder].” Id. at *5; McKeehan v. Wilmington Sav. Fund Soc’y,

FSB, 554 S.W.3d 692, 698 (Tex. App.—Houston [1st Dist.] 2018, no pet.). After considering and

weighing all the evidence, we will set aside the order only if the evidence is so weak, or the finding

is so against the great weight and preponderance of the evidence, that it is “clearly wrong and

unjust.” Boyd v. Palmore, 425 S.W.3d 425, 429 (Tex. App.—Houston [1st Dist.] 2011, no pet.).

Under the Family Code, a trial court may issue a protective order if it “finds that family

violence has occurred.” TEX. FAM. CODE ANN. § 81.001. For purposes of protective orders, “family

violence” includes:

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 defense measures to protect oneself[.]

Id. § 71.004(1). “Family” “includes individuals related by consanguinity or affinity[.]” Id. §

71.003; see also TEX. GOV’T CODE ANN. § 573.022(a)(2) (providing that two individuals are

related to each other by consanguinity if they share a common ancestor), § 573.024(a)(2)

(providing that two individuals are related to each other by affinity if the spouse of one of the

individuals is related by consanguinity to the other individual). “Household” means “a unit

composed of persons living together in the same dwelling, without regard to whether they are

related to each other.” TEX. FAM. CODE ANN. § 71.005. A “member of a household” “includes a

person who previously lived in a household.” Id. § 71.006.

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“At the close of a hearing on an application for a protective order, the [trial] court shall

find whether family violence has occurred.” Id. § 85.001(a). If the trial court makes such a finding,

the trial court shall render a protective order against the person found to have committed family

violence. See id. § 85.001(b)(1). Only protective orders exceeding a two-year duration require a

finding justifying the longer period. See id. § 85.001(d).

B. Applicable Facts

Fluegge testified he requested the protective order after Zbikowski “laid hands” on Stasia,

he intervened, and Zbikowski assaulted him. Fluegge added that Zbikowski continued to harass

Fluegge and Stasia after the altercation, and Fluegge believed Zbikowski would cause future

problems.

Specifically, with respect to the 2019 altercation, Fluegge explained that Zbikowski and

Stasia began arguing about how their mother was handling their recently deceased father’s estate

and then the argument shifted to a fight about a video game console and video game. When the

argument escalated and Zbikowski “put his hand around [Stasia’s] throat,” Fluegge intervened by

stepping in between them and using his body weight to get Zbikowski away from Stasia.

Zbikowski fell and landed face down. Fluegge then attempted to restrain Zbikowski face down on

the floor until he calmed down. According to Fluegge, he told Zbikowski to calm down several

times, and when Zbikowski somewhat stopped resisting, Fluegge let him go.

Zbikowski immediately charged at Fluegge causing him to fall to the floor on his back with

Zbikowski’s forearm across Fluegge’s throat, impeding his breathing. Fluegge reported the

pressure Zbikowski applied with his forearm to Fluegge’s throat hurt, scared him, and caused his

throat to be sore. Although Fluegge tried to calm Zbikowski and convince him to release him,

Zbikowski continued the chokehold until Stasia retrieved her mother, Gale, who persuaded

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Zbikowski to finally release Fluegge. As soon as Fluegge was free, he went outside and called the

police. After the police interviewed everyone, the police arrested Zbikowski.

After Zbikowski’s release from jail, he came back to live at Gale’s house with everyone.

Despite the attempts to peacefully coexist with Zbikowski, he made it increasingly more difficult.

As the problems between Zbikowski and Fluegge and Stasia progressively worsened, Gale asked

Zbikowski to leave, but he stayed. Fluegge explained Zbikowski’s actions caused Fluegge and

Stasia to become concerned for their safety.

When asked why he did not immediately seek a protective order following the 2019

altercation, Fluegge explained that Gale had requested Fluegge not seek a protective order against

her son. Fluegge added that Zbikowski was also arrested in 2022 for reasons unrelated to Fluegge

or Stasia but remained in jail until approximately July 2024 when Zbikowski was tried and

acquitted for the 2019 altercation with Fluegge. Fluegge thus explained that in June 2024, as the

July 2024 trial approached along with the uncertainty of Zbikowski’s potential release, he sought

the protective order because he felt unsafe, uncomfortable, harassed, and alarmed by Zbikowski’s

prior actions.

When Stasia testified, she explained that a combination of events led to the incident

between her, Zbikowski, and Fluegge, including her belief that Zbikowski disrespects their mother,

Gale. However, when she and Zbikowski began to argue over the video game console, their

argument escalated quickly, and Zbikowski “went for [her] throat and neck” causing Fluegge to

immediately respond. Stasia stated that after Fluegge forced Zbikowski away from her and to the

floor, Fluegge told her to call the police, but Stasia went upstairs to retrieve Gale. Stasia

corroborated Fluegge’s account of Zbikowski’s chokehold on him, stating Fluegge’s eyes looked

frightened, and that Zbikowski did not let go of Fluegge until after multiple requests to do so by

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Gale. Stasia testified Fluegge went outside and called the police and Zbikowski remained inside,

pacing and cursing until finally going upstairs to his room before the police arrived. Although

Stasia expressed empathy for Gale regarding Zbikowski, Stasia stated she could not be around her

brother any longer because he made her feel uncomfortable.

Gale also testified and corroborated Fluegge’s and Stasia’s testimony regarding the 2019

altercation and Zbikowski’s constant recording of family members. While Gale agreed to have the

protective order apply to her residence and wanted Zbikowski to move out due to his behavior,

Gale did not want to be listed on the protective order so she could continue to have contact with

her son.

Zbikowski acknowledged that during his physical altercation with Fluegge and after

Fluegge released him, Zbikowski managed to place Fluegge in a chokehold. Nonetheless,

Zbikowski claimed his actions were merely defensive and that his subsequent acquittal regarding

the altercation should prevent the issuance of the protective order.

C. Analysis

Zbikowski and Fluegge are family members as well as members of the same household.

See TEX. FAM. CODE ANN. §§ 71.003, 71.005, 71.006. And an adult member of the family or

household may apply for a protective order for themselves or another member of the applicant’s

family or household. See id. § 82.002(a). A prosecuting attorney may file an application for

protective order on behalf of any person alleged to be a victim of family violence, and the person

alleging to be a victim of family violence in this circumstance is considered the applicant. See id.

§ 82.002(d)(1), (e). Here, a prosecutor with the Bexar County Criminal District Attorney’s Office

filed the application for a protective order on behalf of Fluegge, the applicant. See id.

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With respect to Zbikowski’s complaint that Fluegge did not timely seek the protective

order, suggesting that Fluegge was required to seek protection within thirty-days of the alleged

family violence, Zbikowski confuses the requirements necessary to seek a temporary protective

order that excludes a person from a residence with the requirements of a final protective order. See

id. § 83.006(a), (b) (requiring commission of family violence against member of household within

preceding thirty days by person to be excluded from his residence before trial court may render

temporary ex parte order). An application for and the issuance of a final protective order do not

contain the same requirement. See id. §§ 82.002, 82.004, 85.001.

Additionally, Zbikowski argues that he did not commit family violence against Fluegge

because he was defending himself as evidenced by being acquitted in his trial for assaulting

Fluegge. To the contrary, Fluegge and Stasia testified Fluegge first came to Stasia’s defense when

Zbikowski grabbed Stasia by the throat. After Fluegge released Zbikowski attempting to deescalate

the situation, Zbikowski charged at Fluegge causing them to fall to the floor. Fluegge testified he

was scared when Zbikowski had him in a chokehold, and the longer Zbikowski held him, the more

difficult it became to breathe. Stasia explained Fluegge looked frightened during the altercation,

and she too was scared, fearing Zbikowski was going to “snap” Fluegge’s neck. Also, Gale

acknowledged the gravity of the situation requiring her to persuade Zbikowski to release Fluegge.

Furthermore, Fluegge and Stasia testified that during the time frame between Zbikowski’s release

from jail after his initial arrest for the 2019 altercation and before his subsequent 2022 unrelated

arrest, Zbikowski continued exhibiting hostile behavior towards them, causing Fluegge to be

concerned for his and his wife’s safety. Gale witnessed some of this behavior as well, even

requesting Zbikowski move out of her house.

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Here, we are not bound by the legal sufficiency standards of review applicable to criminal

convictions. Rather, we determine whether, after indulging every reasonable inference in favor of

the finding, more than a scintilla of evidence supports the trial court’s finding that “family violence

has occurred.” Hollimon, 2023 WL 4710895, at **4–5; Yang, 629 S.W.3d at 670; see also TEX.

FAM. CODE ANN. § 85.001(a). Moreover, it is not necessary that the evidence reveal multiple

instances of family violence, one act is sufficient. See Maples v. Maples, 601 S.W.3d 23, 28 (Tex.

App.—Tyler 2020, no pet.) (“[T]he statutory language does not require that a likelihood finding

be based on more than one act of family violence.”); see also TEX. FAM. CODE ANN. §§ 71.004(1),

81.001, 85.001(a); Boyd, 425 S.W.3d at 430 (recognizing statutory language does not require

family violence finding be based on more than one act of family violence as courts have determined

that “[o]ftentimes, past is prologue; therefore, past violent conduct can be competent evidence

which is legally and factually sufficient to sustain the award of a protective order”).

Thus, under these circumstances, it was reasonable for the trial court to determine

Zbikowski’s actions towards Fluegge were intended to result in physical harm, bodily injury, or

assault, or that his actions placed Fluegge in fear of imminent physical harm, bodily injury, or

assault. See TEX. FAM. CODE ANN. § 71.004(1). The trial court reasonably concluded that

Fluegge’s initial reaction to Zbikowski’s grabbing Fluegge’s wife by the throat was defensive,

whereas Zbikowski’s physical reaction to Fluegge was not a defensive measure taken to defend

himself. See id.

Viewing the evidence under the applicable standards of review, we conclude the trial court

had reasonable grounds to believe that Zbikowski committed family violence. See TEX. FAM. CODE

ANN. §§ 71.004(1), 81.001, 85.001(a). Accordingly, the evidence was legally and factually

sufficient to support the trial court’s finding that Zbikowski committed family violence to

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authorize the granting of a protective order against him under the Texas Family Code. See id. §

85.001(a), (b)(1). And because the duration of the trial court’s protective order did not exceed two

years, no additional finding was necessary. See id. § 85.001(d).

Zbikowski also challenges the protective order itself, specifically pointing out that on page

one Stasia is listed as a protected person under the heading for minor protected persons. We note

the evidence supports that Stasia, Fluegge’s spouse and Zbikowski’s sister, is an adult and not a

minor. However, the protective order provides for the protection of other persons as well. We note

this does not constitute a substantive error involving the trial court’s discernment. We modify the

protective order to name Stasia under the appropriate heading as set forth in the conclusion below.

See Barecky v. State, 639 S.W.2d 943, 945 (Tex. Crim. App. 1982) (explaining that if the reviewing

court has the same information for reforming or correcting a judgment as the trial court would

have were the judgment reversed, an appellate court has the power to reform and correct the

judgment as the law and the nature of the case may require).

Furthermore, Zbikowski argues the additional finding on page five of the protective order

that finds he “poses a credible threat to [Fluegge’s] physical safety” cannot be supported because

the finding would also indicate he and Fluegge, are “current and/or former intimate partner[s.]”

The evidence clearly indicates that Zbikowski and Fluegge are family members related to one

another because Fluegge is married to Zbikowski’s sister, Stasia. Absolutely no evidence indicates

Zbikowski and Fluegge have ever had any romantic involvement with one another. We modify the

protective order as set forth in the conclusion below resulting in the deletion of this additional

finding. See Yang, 629 S.W.3d at 672 (providing when “an affirmative finding has been improperly

entered in the judgment, appellate courts may reform the judgment by deleting the finding) (citing

Easterling v. State, 710 S.W.2d 569, 582 (Tex. Crim. App. 1986)); see also Dessens v. Argeroplos,

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658 S.W.3d 438, 448–49, 450–52 (Tex. App.—Houston [14th Dist.] 2022, no pet.) (reviewing

conditions contained in a protective order for an abuse of discretion and modifying unsupported

conditions).

With the exceptions to the modifications to the protective order indicated above, we

overrule Zbikowski’s appellate issues challenging the sufficiency of the evidence supporting the

trial court’s granting of the protective order and his complaints regarding the form, scope, and

duration of the protective order. We affirm the final protective order as modified.

CONCLUSION

On page one, the protective order shall be modified by moving “a. Stasia Zbikowski” from

under the heading labeled: “3. And/or on Behalf of Minor Family Members/Protected Person(s)

(Provide the name for each minor added)” and placing it under the heading labeled: “4. And/or on

Behalf of Other (Protected Person(s) (Provide the name for each person added)[.]”

Furthermore, on page five, the protective order shall be modified to delete the “X” in the

box and leave the box blank in the heading labeled: “1) Additional Finding – Credible Threat[.]”

Zbikowski’s complaints pertaining to a temporary protective order, if any, are moot. We

affirm the trial court’s final protective order as modified. See TEX. R. APP. P. 43.2(b).

Irene Rios, Justice

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