K.D. v. D.D., on Behalf of T.D., a Child ( 2010 )

i i i i i i
MEMORANDUM OPINION
No. 04-09-00091-CV
K.D.,
Appellant
v.
D.D.,On Behalf Of T.D., A Child,
Appellee
From the County Court at Law, Val Verde County, Texas
Trial Court No. 2533
Honorable Sergio J. Gonzalez, Judge Presiding
Opinion by: Marialyn Barnard, Justice
Sitting: Catherine Stone, Chief Justice
Karen Angelini, Justice
Marialyn Barnard, Justice
Delivered and Filed: March 3, 2010
AFFIRMED
K.D. (“Kevin”) appeals from a final protective order sought by D.D. (“Mother”) on behalf
of her minor son, T.D. (“Tony”).1 Kevin contends (1) the trial court erred in admitting certain
hearsay testimony, and (2) the evidence is legally and factually insufficient to establish he committed
family violence, or that he was likely to commit family violence in the future. We affirm.
… Because of the sensitive nature of this case, and the court’s interest in protecting the identity of the minor
1
child, the style of this case includes only the parties’ initials. Moreover, for purposes of confidentiality and clarity, we
will refer to parties and nonparties generically or by pseudonym.
04-09-00091-CV
BACKGROUND
Mother and G.D. (“Father”) divorced in 2007. The couple had one minor son, Tony. Mother
was awarded primary possession of Tony, and Father was given standard visitation rights.
Approximately a year and a half after the divorce, Mother sought a protective order on behalf of five-
year-old Tony. In her application for protective order, Mother alleged thirteen-year-old Kevin, who
is Father’s son from another marriage and Tony’s half-brother, engaged in conduct that constituted
family violence. Mother claimed that when Tony visited Father, Kevin, who lived with Father,
would force Tony to engage in, and watch Kevin engage in, sexual acts. Kevin allegedly threatened
Tony with a belt, telling Tony that if Tony told Mother about the abuse, Kevin would “whip his ass”
the next time Tony visited.
The trial court granted Mother an ex parte temporary protective order, and set the matter for
hearing. At the hearing, Mother testified Tony was “sexually molested” by Kevin. Her testimony
was based on information given to her by Tony. Tony also testified and said, “My brother was
showing me his Bubba2 under the covers.” Tony said this made him feel “very bad.”
Father also testified. He stated that during visitation, Tony stays with him in his room.
However, he admitted that on one occasion Tony spent the night in Kevin’s room–this was
confirmed by V.A.D. (“Grandmother”), who testified Father and Kevin reside in her house. Both
Father and Grandmother testified they did not know if family violence actually occurred; Father went
so far to say that he did not have an opinion on the issue. However, Father admitted Kevin has had
other issues. Father testified Kevin has difficulties in school–he does not do the required work and
“doesn’t really take authority on schooling.” Kevin has also been seeing a psychologist for
2
… The evidence showed Tony and his family referred to a penis as a “boe-boe.” And, Tony referred to Kevin
and Kevin's penis as “Bubba.”
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approximately a year–starting before the alleged family violence incident–and has been diagnosed
with “repressed anger.” Grandmother testified Kevin has an “anxiety disorder” and has been taking
Zoloft once a day for more than a year.
Ultimately, the trial court granted a final protective order, finding Kevin had committed
family violence and family violence was likely to occur in the future. See TEX . FAM . CODE ANN . §
85.001 (Vernon 2008) (stating findings required for issuance of protective order). The protective
order prohibits Kevin from, among other things: (1) committing family violence, (2) communicating
with Tony in a threatening or harassing manner, (3) communicating threats to Tony through another
person, (4) engaging in conduct that is reasonably likely to harass, annoy, alarm, abuse, torment, or
embarrass Tony, (5) going within five hundred feet of Tony’s residence, (6) going within five
hundred feet of any place Tony normally attends or resides, and (7) removing Tony from Mother or
the jurisdiction. By its terms, the protective order expires in two years.
ANALYSIS
Admissibility of Testimony
Kevin first contends the trial court erred in allowing Mother to testify to certain statements
made to her by Tony. Kevin argues the statements were inadmissible hearsay.
It is within the trial court’s discretion to admit or exclude evidence. Nat’l Liab. & Fire Ins.
Co. v. Allen, 15 S.W.3d 525, 527 (Tex. 2000). Accordingly, a trial court’s decision to admit or
exclude evidence is reviewed under an abuse of discretion standard. Id. To determine whether a
trial court abused its discretion, we must decide whether the trial court acted without reference to any
guiding principles; in other words, we must decide whether the decision was arbitrary or
unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert.
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denied, 476 U.S. 1159 (1986). An appellate court may not substitute its own judgment for that of
the trial court simply because it disagrees with the court’s ruling. Bowie Mem’l Hosp. v. Wright, 70
S.W.3d 48, 52 (Tex. 2002). Even if an appellate court determines the trial court abused its discretion
in admitting or excluding evidence, it cannot reverse the trial court’s judgment unless the evidentiary
ruling was harmful, that is, it probably caused the rendition of an improper judgment. Horizon/CMS
Healthcare Corp. v. Auld, 34 S.W.3d 887, 906 (Tex. 2000); see Tex. R. App. P. 44.1(a).
During the hearing, the following exchange occurred:
[Mother’s Attorney]: Would you tell the court, before we get into that testimony,
what it is you observed? How it was that you came to find out about that?
[Mother]: It was in the evening and [Tony] was already in bed. I had gone back in
to tuck him in and to tell him goodnight, and he was acting a little bit weird. He had
covers up to his neck. I said, “[W]hat are you doing?” [“]Nothing, nothing,
mommy.[”]
I said, “[W]hat’s going on?” He said, “[N]othing.” I noticed that he had
reached down under the covers to pull up his pants. And I says [sic], “What are you
doing?” He says, “Nothing.[”] [“]I was[”] – in our family, we – [“][Kevin] touched
my private part.[”] In my family, we call our private parts “boe-boe.” And he says,
[“]I was touching my [‘]boe-boe.[’]” And I said, “Why, where did you learn that?”
At this point, Kevin’s attorney objected, stating “The testimony is hearsay. She can give her
impressions, but she can’t tell us what the part is. She cannot testify over what a third party said, or
didn’t say.” Kevin contends Mother should not have been allowed to testify to Tony’s statements
that Kevin touched Tony’s private part and Tony was touching his “boe-boe.”
“‘Hearsay’” is a statement, other than one made by the declarant while testifying at the trial
or hearing, offered in evidence to prove the truth of the matter asserted.” TEX . R. EVID . 801(d).
Hearsay is generally inadmissible. Id. R. 802. However, any error in the trial court’s admission of
evidence is waived if the complaining party allows the same to be introduced without objection. Bay
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Area Healthcare Group, Ltd. v. McShane, 239 S.W.3d 231, 235 (Tex. 2007) (citing Richardson v.
Green, 677 S.W.2d 497, 501 (Tex. 1984)).
Before Kevin objected to Mother’s statements about Kevin touching Tony’s private parts and
Tony’s “boe-boe,” Mother testified without objection that she learned from Tony that he was
“sexually molested” by Kevin. After the objection, Mother continued to testify and stated without
objection that Tony told her Kevin had taught him to touch his “boe-boe.” She also testified without
objection that Tony told her Kevin made Tony watch Kevin masturbate, and made Tony touch him.
When Tony tried to turn away, Kevin grabbed his face and forced him to watch. This unobjected
to testimony is similar to, and more inculpatory than, the testimony to which Kevin objected.
Kevin’s objection contested one small portion of the testimony regarding Tony’s statements to his
Mother about the sexual abuse; most of the testimony on this subject was admitted without objection.
We therefore hold Kevin did not properly preserve the hearsay issue for our review. See McShane,
239 S.W.3d at 236.
Sufficiency of the Evidence
In his second and third issues, Kevin contends there is legally and factually insufficient
evidence to prove he (1) committed family violence, and (2) family violence is likely to occur in the
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future.3 Both of these findings are required before a trial court can issue a protective order, and in
this case the trial court made both required findings. See TEX . FAM . CODE ANN . § 85.001.
Findings of fact in a case tried to the court have the same force and dignity as a jury’s verdict
upon jury questions and are reviewable under traditional legal and factual sufficiency standards. In
re Doe, 19 S.W.3d 249, 253 (Tex. 2000); Anderson v. City of Seven Points, 806 S.W.2d 791, 794
(Tex. 1991). When the appellant challenges the legal sufficiency of the evidence to support an
adverse finding on an issue for which he did not have the burden of proof, the appellant must
demonstrate there is no evidence to support the adverse finding. Croucher v. Croucher, 660 S.W.2d
55, 58 (Tex. 1983). In conducting the legal sufficiency review, the appellate court must view the
evidence in the light most favorable to the trial court’s finding, crediting favorable evidence if a
reasonable fact finder could, and disregarding contrary evidence unless a reasonable fact finder could
not. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). The evidence is legally sufficient
if it would enable a reasonable and fair-minded fact finder to reach the finding under review. Id. at
827.
When reviewing the factual sufficiency on an issue on which the appellant did not have the
burden of proof, the appellate court considers and weighs all of the evidence in a neutral light, and
may set aside the judgment only if the evidence that supports the challenged finding is so weak as
3
… There is disagreement among the intermediate appellate courts as to the proper standard of review to be
applied in appeals from protective orders. Some courts have held that because a protective order provides relief similar
to that provided by an injunction, the proper standard of review is abuse of discretion, but other courts have applied legal
and factual sufficiency standards of review. Compare, e.g., In re Epperson, 213 S.W .3d 541, 542-43 (Tex.
App.— Texarkana 2007, no pet.) (applying abuse of discretion standard of review) with, e.g., Pena v. Garza, 61 S.W .3d
529, 532 (Tex. App.— San Antonio 2001, no pet.) (applying legal and factual sufficiency standards of review). In Pena,
this court applied legal and factually sufficiency standards, and in this case, Kevin has briefed his issues using those
standards of review. Accordingly, we will apply legal and factual sufficiency standards in our review of the trial court’s
findings.
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to make the judgment clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.
1986). Although the evidence is reviewed in a neutral light, the reviewing court may not impose its
opinion so as to displace the fact finder’s credibility determinations. See Golden Eagle Archery, Inc.
v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003).
In reviewing the sufficiency of the evidence, legal and factual, the appellate court must be
mindful that the trial court, as fact finder, is the sole judge of the credibility of the witnesses and the
weight to be given their testimony. See City of Keller, 168 S.W.3d at 819. The trial court, as fact
finder, may believe one witness, disbelieve others, and resolve any inconsistencies in any witness’s
testimony. McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex. 1986). The appellate court may
not substitute its judgment for that of the fact finder even if it would reach a different finding based
on the evidence. See Maritime Overseas Corp. v. Ellis, 971 S.W.3d 402, 407 (Tex. 1998).
Past Family Violence
The Texas Family Code includes three definitions of “family violence.” See TEX. FAM . CODE
ANN . § 71.004 (Vernon 2008). Based on the trial court’s findings and the evidence, the following
definitions of family violence are relevant here:
(1) [A]n 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, or
assault, or sexual assault, or that is a threat that reasonably placed the member in fear
of imminent physical harm, bodily injury or assault; and
(2) [A]buse, as that term is defined by Sections 261.001(1)(C), (E), and (G) by a
member of a family or household toward a child of the family or household[.]
Id. § 71.004(1), (2). As it pertains to this case, section 261.001(1)(E) defines “abuse” as “sexual
conduct harmful to a child’s mental, emotional, or physical welfare, including conduct that
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constitutes the offense of . . . indecency with a child under Section 21.11, Penal Code.” Id.
§ 261.001(1)(E). A person commits the offense of indecency with a child if, with a child younger
than seventeen years, a person “engages in sexual contact with the child or causes the child to engage
in sexual contact[,] or with the intent to arouse or gratify the sexual desire of any person: exposes
. . . any part of the person’s genital, knowing the child is present[,] or causes the child to expose . . .
any part of the child’s genitals.” TEX . PENAL CODE ANN . § 21.11(a) (Vernon Supp. 2009). “Sexual
contact” includes touching any part of the genitals of another person with intent to arouse or gratify
any person. Id. § 21.01(2).
The trial court found Kevin touched Tony’s genitals, Kevin made Tony watch Kevin
masturbate, and Kevin made Tony touch Kevin’s genitals. These findings are supported by the
evidence, and Kevin failed to provide any actual controverting evidence.
Mother testified Kevin “sexually molested” Tony, specifically stating Tony said Kevin
touched his “boe-boe”, i.e., penis. She also testified Tony said Kevin taught him to masturbate,
making Tony watch him, and forcing Tony to watch when he tried to look away. According to
Mother, Tony said Kevin threatened him with physical violence if Tony told Mother. Kevin popped
a white belt in front of Tony, and said he would “whip [Tony’s] ass if he told. Tony testified Kevin
exhibited his penis, and it made Tony “feel very bad” and Tony “wanted it to go away.” According
to Tony, Kevin “kept showing [his penis] to me.”
This evidence supports the trial court findings, and its conclusion that family violence, as
defined in section 71.004(2), had occurred. Kevin clearly engaged in sexual conduct with Tony that
was, at a minimum, harmful to Tony’s mental and emotional well-being. See TEX . FAM . CODE ANN .
§ 261.001(1)(E). Moreover, there was evidence to support a finding that Kevin committed the
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offense of indecency with a child by engaging in sexual contact with Tony, causing Tony to engage
in sexual contact, and exposing himself to Tony with the intent to arouse or gratify himself. See id.;
TEX . PENAL CODE ANN . § 21.11
Father testified there was only one night where Tony slept with Kevin rather than in Father’s
room. This testimony does not provide any evidence that Tony did not commit family violence;
rather, it shows Kevin had an opportunity to abuse Tony. Grandmother controverted Tony’s claim
that he told her about the abuse and spanked Kevin for it. Father and Grandmother both testified
they could not believe Kevin would molest Tony, but both admitted they did not know what
happened.
Considering the evidence in the light most favorable to the trial court’s finding, we hold the
evidence was sufficient to enable a reasonable and fair-minded fact finder to find family violence
had occurred. See City of Keller, 168 S.W.3d at 827. And, even when the evidence is considered
in a neutral light, we cannot say the evidence in support of the family violence finding is so weak
as to make the judgment clearly wrong and manifestly unjust. See Cain, 709 S.W.2d at 176.
Accordingly, we overrule Kevin’s second issue.
Future Family Violence
Kevin also complains about the sufficiency of the evidence to support the trial court’s finding
that family violence is likely to occur in the future. We begin by noting Texas law, in the context
of protective orders, recognizes that evidence showing a person has engaged in abusive conduct in
the past permits an inference that the person will continue such conduct in the future. See, e.g., In
re Epperson, 213 S.W.3d 541, 543-44 (Tex. App.—Texarkana 2007, no pet.); In re T.L.S., 170
S.W.3d 164, 166 (Tex. App.—Waco 2005, no pet.); Pena, 61 S.W.3d at 532. As noted in Epperson,
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“Often times, past is prologue; therefore, past . . . conduct can be competent evidence which is
legally and factually sufficient to sustain the award of a protective order.” 213 S.W.3d at 544.
We have already discussed the evidence establishing Kevin committed family violence in the
past. This past violence permits an inference that Kevin will engage in such conduct in the future.
Moreover, Mother testified Kevin threatened Tony, telling Tony that if Tony told Mother about the
sexual abuse, the next time Tony returned to Father’s house, Kevin would “whip his ass.” When
Kevin made this threat, he was holding a belt in front of Tony and popping it. This suggests Kevin
has already contemplated future violent action against his half-brother.
Father, when asked if he felt he could protect Tony, stated he could. However, this is not
evidence that Kevin will not commit future family violence, only that Father would protect Tony
from it. Father admitted Kevin has issues with obeying Father’s instructions, has trouble with
authority figures, repressed anger, and has been seeing a psychologist for more than a year–beginning
before the incident with Tony occurred. Grandmother testified Kevin has been taking Zoloft every
day for more than a year. Moreover, Father admitted that he would not require Kevin to move out,
just that he would ensure Kevin was absent during Tony’s visits.
Based on the foregoing, whether viewed in the light most favorable to the future violence
finding or in a neutral light, the evidence is sufficient to support the trial court’s finding. We
therefore overrule Kevin’s third issue.
CONCLUSION
Based on the foregoing, we overrule Kevin’s issues and affirm the trial court’s judgment.
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Marialyn Barnard, Justice
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