In the Interest of A.H. and V.H., Children v. the State of Texas ( 2023 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-22-00241-CV
___________________________
IN THE INTEREST OF A.H. AND V.H., CHILDREN
On Appeal from the 481st District Court
Denton County, Texas
Trial Court No. 22-3497-481
Before Birdwell, Bassel, and Walker, JJ.
Memorandum Opinion by Justice Bassel
MEMORANDUM OPINION
I. Introduction
This is an appeal from an order granting a family-violence protective order,
which was sought by Appellee (Father) to protect himself and his two children from
their mother Appellant (Mother). See Tex. Fam. Code Ann. §§ 81.001, 85.001. In two
issues, Mother argues that the evidence is legally and factually insufficient to support
the trial court’s findings that (1) she had committed family violence in the past and
(2) there is a likelihood that she will commit family violence in the future. Based on
the standards of review that we are required to apply, we hold that legally and factually
sufficient evidence supports the trial court’s findings. Accordingly, we affirm.
II. Background
In May 2022, Father filed an application for a family-violence protective order
against Mother to protect himself and the parties’ two children. Father alleged that
Mother had engaged in family violence. Father asked the trial court to issue a
temporary ex parte protective order pending a final hearing and to issue a final
protective order after the final hearing.
To his application, Father attached his affidavit in which he recounted Mother’s
actions toward him:
• Father averred that in early March 2022, Mother and her significant other
(whom he recognized by their voices and movements despite their being
clothed in face masks and hoodies) had attacked him. He was hit in the
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head with a baseball bat and a chain, “nearly knocking [him] unconscious.”
During the encounter, Mother had stated, “I told you I was going to f[--]k
you up.” Father averred that he was in fear for his life and for the life of his
children.
• Father also averred that in December 2020, Mother’s significant other had
attended a visit with Mother and had pulled a gun and had threatened him.
Father learned that his son had seen the gun and was frightened.
• Father further averred that Mother had called his phone from an
anonymous number numerous times, at all hours of the day and night,
“sometimes making threats, [and] other times just remaining silent and
hanging up after calling repeatedly.”
The trial court granted Father’s request for an ex parte protective order and
subsequently held a final hearing. Following the hearing, the trial court found that
family violence had occurred, that it is likely to occur in the future, that Mother had
committed an act constituting a felony offense involving family violence against
Father, and that such act had caused serious bodily injury to Father. The trial court
granted Father’s application for protective order for a period of five years. The trial
court determined that there would be only supervised visitation by law enforcement
going forward and that Mother would be required to pay the cost of having law
enforcement supervise the visits. Mother then perfected this appeal.
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III. Sufficient Evidence Supports the Family-Violence Findings
In her two issues, Mother challenges the legal and factual sufficiency of the
evidence to support the trial court’s findings that she had committed family violence
in the past and that there is a likelihood that she will commit family violence in the
future. Applying the applicable standards of review, we conclude that legally and
factually sufficient evidence supports the trial court’s family-violence findings.
A. Standards of Review
When the trial court acts as factfinder, we review its findings under the legal-
and factual-sufficiency standards. Huskins v. Garcia, No. 02-21-00328-CV, 2022 WL
3905083, at *2 (Tex. App.—Fort Worth Aug. 31, 2022, no pet.) (mem. op.) (first
citing In re Doe, 19 S.W.3d 249, 253 (Tex. 2000); then citing Watts v. Adviento, No. 02-
17-00424-CV, 2019 WL 1388534, at *3 n.3 (Tex. App.—Fort Worth Mar. 28, 2019,
no pet.) (per curiam) (mem. op.) (stating that legal- and factual-sufficiency standards
of review are proper in appeals from protective orders); and then citing Jakobe v.
Jakobe, No. 2-04-068-CV, 2005 WL 503124, at *1 n.4 (Tex. App.—Fort Worth Mar. 3,
2005, no pet.) (per curiam) (mem. op.) (measuring the sufficiency of the evidence in
protective order appeals by legal- and factual-sufficiency contentions)).
1. Legal Sufficiency
We may sustain a legal-sufficiency challenge—that is, a no-evidence
challenge—only when (1) the record bears no evidence of a vital fact, (2) the rules of
law or of evidence bar the court from giving weight to the only evidence offered to
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prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere
scintilla, or (4) the evidence establishes conclusively the opposite of a vital fact. Gunn
v. McCoy, 554 S.W.3d 645, 658 (Tex. 2018). In determining whether legally sufficient
evidence supports the challenged finding, we must consider evidence favorable to the
finding if a reasonable factfinder could, and we must disregard contrary evidence
unless a reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas, 228
S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).
We indulge “every reasonable inference deducible from the evidence” in support of
the challenged finding. Gunn, 554 S.W.3d at 658 (quoting Bustamante v. Ponte, 529
S.W.3d 447, 456 (Tex. 2017)).
Anything more than a scintilla of evidence is legally sufficient to support a
finding. Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727–28 (Tex. 2003). More than a
scintilla exists if the evidence rises to a level that would enable reasonable and fair-
minded people to differ in their conclusions. Gunn, 554 S.W.3d at 658. On the other
hand, no more than a scintilla exists when the evidence offered to prove a vital fact is
so weak that it creates no more than a mere surmise or suspicion of its existence.
McAllen Hosps., L.P. v. Lopez, 576 S.W.3d 389, 397 (Tex. 2019); Kindred v. Con/Chem,
Inc., 650 S.W.2d 61, 63 (Tex. 1983).
2. Factual Sufficiency
When reviewing an assertion that the evidence is factually insufficient to
support a finding, we set aside the finding only if, after considering and weighing all
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the pertinent record evidence, we determine that the credible evidence supporting the
finding is so weak, or so contrary to the overwhelming weight of all the evidence, that
the finding should be set aside and a new trial ordered. Pool v. Ford Motor Co., 715
S.W.2d 629, 635 (Tex. 1986) (op. on reh’g); Cain v. Bain, 709 S.W.2d 175, 176 (Tex.
1986); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965).
Findings of fact are the exclusive province of the factfinder. Bellefonte
Underwriters Ins. Co. v. Brown, 704 S.W.2d 742, 744 (Tex. 1986). The factfinder is the
sole judge of the witnesses’ credibility and the weight to be given to their testimony.
Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003).
B. Applicable Law
The Family Code provides that a trial court must render a protective order if it
finds that family violence has occurred and is likely to occur in the future. Tex. Fam.
Code Ann. §§ 81.001, 85.001, .022. “Family violence” means 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 defensive measures to protect
oneself. Id. § 71.004(1). “Member of a household” includes a person who previously
lived in a household. Id. § 71.006.
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C. Relevant Evidence
Father testified at the protective-order hearing that Mother has only supervised
visitation with their two children. Father described his strained relationship with
Mother, as well as several incidents that had occurred.
Father testified that since 2015, he had received either a threatening email or a
threatening voicemail from Mother “a thousand times.”1 He said that he had received
numerous threats from Mother since 2015 and that one of the reasons that Mother
was allowed only supervised visits was because she had threatened to harm Father or
the children; she had said, “I’m going to hurt you. And, as I told you, I’m going to
take these kids to the Philippines.” 2
In the April to June 2020 time frame, Mother’s significant other James Dean3
showed up “high, drunk” to a visit, and Father told Mother, “[T]his can’t happen. If
this guy is coming like this, either you got to tell him to leave, or I will terminate the
visit peacefully.” Father told Mother that if she wanted to bring Dean to future visits,
she needed to get his consent for Father to run a background search on him. Mother
Father testified that he had tried to report Mother for harassment, but that was
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unsuccessful.
Father testified that Mother had previously kidnapped the children. In 2012,
2
Mother took the children to South Carolina. Father testified that he had hired a
private investigator to locate Mother, and when he had found her, Mother demanded
that she be paid $5,000 before she would return the children. Father paid Mother the
money and recovered his children.
Out of an abundance of caution, we use a pseudonym for Mother’s significant
3
other.
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sent Father an email stating, “‘F’ you. I’m not going to do it. I do what I want to do.
I hope you die.”
At the December 2020 scheduled visit that took place at a park in Carrollton,
Mother and Dean arrived two hours late. When Dean approached the children,
Father reminded Mother that Dean was not allowed to be present at the visit because
he had not undergone a background check. Mother said, “‘F’ you. I’ll bring anybody
I want.” Dean said, “Oh, MF, you can’t say that. You can’t do that.” Father
announced that the visit was terminated and grabbed his children’s hands to leave;
Dean pulled a gun, which the children saw. Mother got mad at Dean and told him
something, and he ran to his truck, to the river, to the ladies’ room, to the men’s
room, to a building, and back to his truck. While Dean was running around, Father
went to his truck but saw that he was blocked in. He called the police. The police
came but did not find a gun. After that incident, Father’s daughter said that she did
not want to go to that park anymore and that she was scared “for eight months to go
. . . there.”
Father testified that on March 1, 2022,4 he ran errands after work. Prior to
picking up his children, his truck made a strange noise, so he pulled over. As soon as
he got out of his truck, someone hit him with a baseball bat. He saw that there were
Initially, Father testified that the event had occurred in early March around
4
March 1 through March 3. On cross-examination, he explained that the event had
happened anytime from March 1 to March 8. On redirect, he refreshed his
recollection by looking at his notes and testified that the event had occurred on
March 1.
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two people wearing face masks, sunglasses, and hoodies, despite that it was a warm
day. One of the individuals was a woman and the other was a man. The man had a
chain that he was using to hit Father, causing Father to fall. Father explained that as
the woman hit him with the baseball bat, she “used a word that [Mother and Dean]
use all the time towards [him].” Although Father did not see their faces, he
recognized the attackers as Mother and Dean based on their voices, wording, and
body language. Father screamed, “I know who you are,” and went toward his
attackers. Mother tried to hit him again with the baseball bat, but Father grabbed her
hand with one of his hands and used his other hand to try to dial 911. As he was
trying to dial, he was hit in the back with “a rock or [a] heavy punch” and let go of
Mother’s wrist. Mother and Dean ran toward Father’s truck and looked in, but Father
said, “My babies are not here.” Mother and Dean then ran and left the scene. Father
fell down three or four times before he was able to get into his truck. He stopped at a
shopping center to clean up the blood on himself. Father reported this incident to the
police and went to the doctor and the eye doctor. Father admitted into evidence
photographs of his injured face and head that were taken a couple of days after the
incident.
Shortly after the ex parte temporary protective order was served on Mother,
she called Father twice, but he did not answer. He then received a call from a private
number; a lady whose voice was unknown to Father said, “We’re going to fight this
out.” He hung up without replying. These communications were made despite that
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the temporary ex parte protective order stated that there was to be no
communication.
Father testified that he had been physically attacked by Mother and that he
feared that he would be attacked by her in the future. In addition to fearing for his
future safety, he also feared for his children’s safety because there was also a threat of
kidnapping or violence against his children by Mother.
During her cross-examination of Father, Mother (who represented herself
pro se in the trial court) made much of the fact that Father did not introduce his
medical records or police reports from the gun incident at the park or the assault.
During her case in chief, she called Dean to testify. With regard to the December
2020 incident at the park, Dean said that as soon as Father called 911 and said that
Dean had a gun, Dean started recording the incident, which he said Mother was also
recording.5 Dean said that “the cops showed up. They searched for the gun. No
gun. No gun anywhere [in the] park, no gun on [him], no gun in [his] truck.” As to
the March 1, 2022 incident, Dean said that he and Mother had come to Texas that day
for a consultation with their family-law advocate and had driven back to Oklahoma
City the same day; he testified that he and Mother were at their residence in
Oklahoma from March 2 through March 7. The trial court asked Dean if Father
knew that they “were coming into town to see the family[-law] advocate,” and Dean
said, “Not that I know of.”
5
No such recordings were admitted in evidence.
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D. Analysis
Mother argues that the evidence is insufficient to support a finding of past
family violence because Father could not visually identify his attackers during the
March 2022 incident, because the attack happened between March 1 and March 8 at a
time when Mother and Dean were in Oklahoma, and because no gun was found
during the December 2020 visit at the park.6 The record reflects that on redirect,
Father narrowed the date of the assault from “early March” to March 1, and Dean
testified that he and Mother were in the area that day to meet with a family-law
advocate. Even if the trial court did not believe Father’s testimony about the incident
with Dean and the gun at the park in December 2020, the testimony from Father and
Dean regarding the March 1, 2022 incident is legally and factually sufficient to support
a finding of past family violence. See Watts, 2019 WL 1388534, at *6; Finley v. Finley,
No. 02-11-00045-CV, 2015 WL 294012, at *4 (Tex. App.—Fort Worth Jan. 22, 2015,
no pet.) (per curiam) (mem. op.) (holding evidence legally sufficient to support the
trial court’s granting of application for protective order because uncontroverted
testimony showed that father had broken into home where mother and son were
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Mother also argues that Father’s claimed harassment from her via voicemail
messages was insufficient because the two voicemail messages that he played for the
trial court did not show a threat of harm and were only “requesting to speak with and
to have pictures of her children and expressing her exasperation with Father.” We
agree that the two voicemail messages did not reflect threats and therefore do not
focus on them in our analysis of past family violence.
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staying and tried to take son and then punched mother in the face). We overrule
Mother’s first issue.7
As for the trial court’s finding that Mother was likely to commit family violence
in the future, evidence of past family violence can constitute sufficient evidence that
future family violence is likely. See Watts, 2019 WL 1388534, at *6; Maki v. Anderson,
No. 02-12-00513-CV, 2013 WL 4121229, at *5 (Tex. App.—Fort Worth Aug. 15,
2013, pet. denied) (per curiam) (mem. op.); see also In re Epperson, 213 S.W.3d 541, 544
(Tex. App.—Texarkana 2007, no pet.) (“Oftentimes, 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.”). Given Father’s testimony and the
photographs of the injuries to his face and head, the trial court could have inferred
that Mother would continue to act the same way in the future. Further, the trial court
could have believed Father’s testimony that he was concerned for the future safety of
his children because Mother had threatened to take them out of the country.
Mother argues that she “lives three hours away in a different state than [Father]
and works two jobs, which would most likely hinder her availability to commit acts of
7
Towards the end of the discussion of her first issue, Mother’s brief states that
“a finding of past family violence should actually be assigned to [Father].” As we
have stated in a prior opinion, “Our task is not to determine whether some evidence
in the record supports a finding contrary to the one the trial court made, as
[appellant’s] argument would require us to do.” Watts, 2019 WL 1388534, at *6.
Moreover, a court of appeals cannot make original findings of fact; it can only
“unfind” facts. Tex. Nat’l Bank v. Karnes, 717 S.W.2d 901, 903 (Tex. 1986).
Accordingly, we decline Mother’s implicit request to make a finding of past family
violence as to Father.
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future family violence.” Despite that distance and Mother’s two jobs, the record
demonstrates that Mother was able to come to Texas on March 1, 2022, and commit
an assault causing serious bodily injury to Father.
Mother also cites to two cases from this court in arguing that “where no threats
of future violence were made, the court found that future family violence was unlikely
to occur despite there being a child in the situation.” See Huskins, 2022 WL 3905083,
at *3; Scott v. Wooley, No. 02-19-00318-CV, 2020 WL 7063292, at *4–5 (Tex. App.—
Fort Worth Dec. 3, 2020, no pet.) (mem. op.). Both of the cases cited by Mother are
appeals from orders denying applications for protective orders. See Huskins, 2022 WL
3905083, at *1; Scott, 2020 WL 7063292, at *1. And in both cases, we stated that we
were deferring to the trial court’s credibility determinations. See Huskins, 2022 WL
3905083, at *4; Scott, 2020 WL 7063292, at *5. We also defer to the trial court’s
credibility determinations here, and the record is clear that the trial court believed
Father’s testimony was credible.
Applying the applicable standards of review, we hold that the evidence is legally
and factually sufficient to support the trial court’s finding that Mother is likely to
commit family violence in the future. See Watts, 2019 WL 1388534, at *6; Finley, 2015
WL 294012, at *4 (holding evidence factually sufficient to support protective order
based on prior assault).
Because the evidence is legally and factually sufficient to support both the trial
court’s finding that Mother had committed an act of family violence against Father in
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the past and its finding that Mother is likely to do so again in the future, we hold that
the trial court’s protective order is supported by legally and factually sufficient
evidence. See Watts, 2019 WL 1388534, at *6. Accordingly, we overrule Mother’s two
issues.
IV. Conclusion
Having overruled Mother’s two issues, we affirm the trial court’s protective
order.
/s/ Dabney Bassel
Dabney Bassel
Justice
Delivered: April 6, 2023
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