COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00370-CV
Jayson Aguilar § From the 231st District Court
§ of Tarrant County (231-500094-11)
v.
§ December 21, 2012
Serina Sierra Aguilar § Per Curiam
JUDGMENT
This court has considered the record on appeal in this case and holds that
there was no error in the trial court’s judgment. It is ordered that the judgment of
the trial court is affirmed.
SECOND DISTRICT COURT OF APPEALS
PER CURIAM
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00370-CV
JAYSON AGUILAR APPELLANT
V.
SERINA SIERRA AGUILAR APPELLEE
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FROM THE 231ST DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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I. Introduction
Appellant pro se Jayson Aguilar appeals following the trial court’s entry of
a protective order against him, and he argues in three issues that the trial court
erred by allowing perjury to be used as supporting evidence, by ruling without
factually accurate evidence, and by violating his Fourth and Seventh Amendment
rights. We affirm.
1
See Tex. R. App. P. 47.4.
2
II. Background
The following facts are set forth in the July 11, 2011 affidavit in support of
application for protective order signed by Serina Sierra Aguilar, the complainant
and appellee herein. Serina and Jayson were married in 2004 and lived together
until June 27, 2011. They have two children.
On June 4, 2011, Jayson was showing Serina a martial arts move he had
learned. When Serina told him that she was not interested, Jayson ―accidentally‖
kicked her on the thigh with the heel of his foot, leaving a bruise on Serina’s
thigh. Later that month, Jayson taught the couple’s older son about pressure
points on a person’s body, but Serina told Jayson that she did not believe it was
appropriate to teach such things to a five-year-old child. Jayson stated that the
techniques were for self-defense, and he demonstrated by touching Serina’s
pressure points. Serina told Jayson to stop, but ―Jayson continued for a few
more times causing [Serina] pain [in her] right foot and leaving a finger nail
imprint.‖
On June 26, 2011, Jayson broke items in Serina’s parents’ house in anger
and stated via telephone that he wanted to kill her parents. Someone called the
police, but Jayson had left before the police arrived. The locks were changed,
but Jayson returned around two or three o’clock the next morning. Jayson told
Serina that ―he would [w]ring [her] neck like a chicken.‖ Jayson also touched
pressure points on Serina’s forehead and shoulder, and Serina cried. Jayson
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then ―struck his arm at [Serina] and [she] dodged it.‖ Jayson was arrested when
the police arrived.
After his arrest, Jayson called Serina from jail until she called to report him.
Serina stated in the affidavit that she feared for her life, that Jayson talked about
killing her, that he said he would kill her if she turned to the police, that he said
there would be no evidence that he had killed her, and that ―Jayson’s anger
allows him to do crazy cruel things.‖
The trial court rendered a written protective order against Jayson on July
19, 2011. Jayson did not appear for the hearing.
III. Discussion
Jayson argues in his first and second issues that the trial court erred by
allowing perjury to be used as supporting evidence and that the trial court did not
have ―factual truth‖ when making its decision. We broadly construe Jayson’s first
two issues to challenge the legal and factual sufficiency of the evidence. Jayson
argues in his third issue that the trial court violated his Fourth and Seventh
Amendment rights.
A. Standards of Review
―[W]e review appellate challenges to the granting of protective orders for
sufficiency of the evidence, measured by legal and factual sufficiency
contentions.‖ Schaban-Maurer v. Maurer-Schaban, 238 S.W.3d 815, 823 (Tex.
App.—Fort Worth 2007, no pet.), disapproved on other grounds, Iliff v. Iliff, 339
S.W.3d 74 (Tex. 2011). We may sustain a legal sufficiency challenge only when
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(1) the record discloses 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 establishes conclusively the
opposite of a vital fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328,
334 (Tex. 1998), cert. denied, 526 U.S. 1040 (1999); Robert W. Calvert, “No
Evidence” and “Insufficient Evidence” Points of Error, 38 Tex. L. Rev. 361, 362–
63 (1960). In determining whether there is legally sufficient evidence to support
the finding under review, we must consider evidence favorable to the finding if a
reasonable factfinder could and disregard evidence contrary to the finding 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, 807, 827
(Tex. 2005).
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 of the evidence in the record pertinent to that finding, 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 answer 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).
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B. Legally and Factually Sufficient Evidence
A trial court must render a protective order ―if the court finds that family
violence has occurred and is likely to occur in the future.‖ Tex. Fam. Code Ann.
§ 81.001 (West 2008); see id. § 85.001 (West Supp. 2012). In his brief, Jayson
presents his version of what occurred in June 2011, denies that he made threats
against Serina’s life or safety, asserts that Serina’s affidavit contains numerous
untruths, and denies that he committed family violence.
We first note that Serina’s affidavit presented sufficient evidence that
family violence had occurred and was likely to occur in the future. Relevant to
this case, ―family violence‖ means an act by one member of a family against
another member of that family ―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.‖ Id. § 71.004(1) (West 2008). Serina’s affidavit includes statements that
Jayson kicked her on her thigh, possibly accidentally, on June 4, 2011; that
Jayson caused Serina pain when he, without her consent, demonstrated
pressure points for their son later in June 2011; that on June 26, 2011, Jayson
broke items in Serina’s parents’ house in anger, said that he wanted to kill
Serina’s parents, and left before police arrived; that Jayson, early the next
morning, touched pressure points on Serina’s forehead and shoulder, said that
he would ―[w]ring [her] neck like a chicken,‖ and struck his arm at her; and that
Jayson continued to call Serina from jail after his arrest. Serina’s affidavit also
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states that she feared for her life and that Jayson had talked to her about killing
her but leaving no evidence.
In the context of protective orders, Texas law recognizes that evidence
showing that a person has engaged in abusive conduct in the past permits an
inference that the person will continue such conduct in the future. See 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.), overruled on
other grounds by In re J.D., 304 S.W.3d 522 (Tex. App.—Waco 2009, no pet.).
As noted in Epperson, ―Oftentimes, 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. In this case, there is evidence
within the affidavit showing escalated incidents of hostility and physical and
verbal aggression toward Serina. That evidence and the evidence that Jayson
continued to contact Serina from jail together constitute legally and factually
sufficient evidence that family violence had occurred and was likely to occur in
the future. See Tex. Fam. Code Ann. §§ 71.004(1), 81.001, 85.001; Pena v.
Garza, 61 S.W.3d 529, 532 (Tex. App.—San Antonio 2001, no pet.) (noting
conflicting evidence at trial and trial court’s role as factfinder, and holding legally
and factually sufficient evidence supported future family violence finding); see
also K.D. v. D.D., No. 04-09-00091-CV, 2010 WL 724373, at *5–6 (Tex. App.—
San Antonio Mar. 3, 2010, no pet.) (mem. op.) (holding evidence of future family
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violence legally sufficient based on inference from past conduct and past threat
to harm complainant if complainant reported sexual abuse).
Jayson argues that the statements in Serina’s affidavit are untrue and
constitute perjury, and he asserts that the trial court made its decision to render
the protective order with only Serina’s version of events. However, we cannot
reverse the protective order on these grounds. First, nothing in the appellate
record other than Jayson’s assertions suggests that Serina’s affidavit actually
contains perjury, and ―alleged perjury [is not] an issue on which this court can
grant relief.‖ Hendricks v. Hendricks, No. 02-05-00304-CV, 2007 WL 2067827,
at *3 n.6 (Tex. App.—Fort Worth July 19, 2007, no pet.) (mem. op.). Second,
Jayson’s version of what occurred in June 2011 is not in the record, and we are
therefore not permitted to consider it. See Nguyen v. Intertex, Inc., 93 S.W.3d
288, 292–93 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (―With limited
exceptions not relevant here, an appellate court may not consider matters
outside the appellate record.‖), overruled on other grounds by Glassman v.
Goodfriend, 347 S.W.3d 772 (Tex. App.—Houston [14th Dist.] 2011, pet. denied);
see also In re D.L.S., No. 02-10-00366-CV, 2011 WL 2989830, at *6 n.6 (Tex.
App.—Fort Worth July 11, 2011, no pet.) (mem. op.). Moreover, even if the
statements in Jayson’s appellate brief were before the trial court at the time of
the protective order hearing, it was the trial court’s province to judge the
credibility of the witnesses and to resolve any discrepancies in their testimony,
meaning we as an appellate court are not permitted to substitute our judgment
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for that of the trial court and are not allowed to reweigh the evidence. See
Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003); Young
v. Young, 168 S.W.3d 276, 281 (Tex. App.—Dallas 2005, no pet.) (―In a bench
trial, it is for the court, as trier of fact, to judge the witnesses, to assign the weight
to be given their testimony, and to resolve any conflicts or inconsistencies in the
testimony.‖); In re M.G.M., 163 S.W.3d 191, 202 (Tex. App.—Beaumont 2005, no
pet.) (―It was for the trial court alone to determine the credibility of the witnesses,
and the trial court could have disregarded [respondent’s] denials in their
entirety.‖).
Finally, to the extent that Jayson contends that the trial court heard only
Serina’s version of what occurred in June 2011 because he was not represented
by counsel, the appellate record does not contain any indication that Jayson
requested that the trial court appoint him counsel. And even if Jayson had
requested counsel, Jayson does not have the automatic right to appointment of
counsel in this case because it is a civil protective order proceeding in which
Serina sought to have Jayson restrained but not imprisoned. See Martin v.
Parris, No. 06-10-00037-CV, 2011 WL 766653, at *6 (Tex. App.—Texarkana
Mar. 4, 2011, no pet.) (mem. op.); Lopez v. State, No. 12-02-00380-CV, 2003 WL
23015072, at *2–3 (Tex. App.—Tyler Dec. 23, 2003, pet. denied) (mem. op.); see
also Cox v. Simmons, No. 07-07-00320-CV, 2007 WL 2409746, at *1–2 (Tex.
App.—Amarillo Aug. 24, 2007, order), disp. on merits, No. 07-07-00320-CV,
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2008 WL 216085 (Tex. App.—Amarillo Jan. 25, 2008, no pet.) (mem. op.). We
overrule Jayson’s first and second issues.
C. Constitutional Rights
Jayson argues in his third issue that the trial court violated his Fourth and
Seventh Amendment rights by rendering the protective order. Specifically,
Jayson contends that he should have been permitted a jury trial and that the
protective order, which prohibits him from going within 200 yards of the residence
where he formerly resided with Serina, denies him the right to be secure in his
home.
Concerning Jayson’s alleged Seventh Amendment right to a jury trial, this
court has twice held that ―a party to a trial on an application for a family violence
protective order is not entitled to a jury trial.‖ Winsett v. Edgar, 22 S.W.3d 510,
512 (Tex. App.—Fort Worth 2000, pet. denied); Williams v. Williams, 19 S.W.3d
544, 545–46 (Tex. App.—Fort Worth 2000, pet. denied). We therefore overrule
this portion of Jayson’s third issue.
As to Jayson’s contention that the protective order unconstitutionally
interferes with his right to be secure in his home, we note that family code section
85.022(b)(3) expressly allows a trial court to prohibit a person who has been
found to have committed family violence from going to or near the residence of
the person protected by the protective order. Tex. Fam. Code Ann. §
85.022(b)(3) (West Supp. 2012). We further note both that any review
concerning the alleged unconstitutional application of a statute begins with the
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presumption that the statute is constitutional and that the party challenging its
application has the burden of showing its alleged unconstitutionality. Teel v.
Shifflett, 309 S.W.3d 597, 601 (Tex. App.—Houston [14th Dist.] 2010, pet.
denied). Jayson’s brief states only that he ―feels his right to be secure at the
address he is not permitted to go to violates his IV Amendment rights.‖ This
argument, even assuming it were supported by evidence in the appellate record,
is not sufficient to overcome Jayson’s burden of showing the alleged
unconstitutional application of family code section 85.022(b)(3). We therefore
overrule the remainder of Jayson’s third issue.
IV. Conclusion
Having overruled each of Jayson’s three issues, we affirm the trial court’s
judgment.
PER CURIAM
PANEL: GARDNER, MCCOY, and MEIER, JJ.
DELIVERED: December 21, 2012
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Jayson Aguilar v. Serina Sierra Aguilar
Combined Opinion