COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00391-CV
MARION TAITE, JR. APPELLANT
V.
ALMA ZAPATA APPELLEE
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FROM THE 322ND DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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Appellant Marion Taite, Jr. appeals the trial court’s protective order in favor
of appellee Alma Zapata. In his only issue, appellant contends that appellee
presented ―no evidence that family violence occurred . . . or will occur in the
future.‖ We affirm.
1
See Tex. R. App. P. 47.4.
Background Facts
In July 2010, the Tarrant County District Attorney’s Office, on behalf of
appellee, filed an application for a protective order against appellant, alleging that
he had engaged in family violence.2 Appellee signed an affidavit that the district
attorney’s office attached to the application. In the affidavit, appellee alleged,
among other facts, that appellant had threatened her with violence, had
physically hurt her, and had vandalized her apartment. The trial court entered a
temporary ex parte protective order against appellant and set a hearing on
appellee’s application.3
Appellant answered the application, and the parties filed other various
documents. One day after a September 27, 2010 evidentiary hearing in which
seven witnesses testified, the trial court entered a final protective order. In the
order, the trial court found that ―family violence . . . occurred and is likely to occur
again in the future,‖ that appellant committed the family violence, and that
appellant ―represent[ed] a credible threat to the physical safety‖ of appellee.
The trial court prohibited appellant, for a period of one year, from committing
further family violence, communicating with appellee in a threatening or
2
The family code provides authority for a prosecuting attorney to file an
application for a protective order. Tex. Fam. Code Ann. §§ 81.007(a),
82.002(d)(1) (West 2008).
3
See Tex. Fam. Code Ann. §§ 83.001(a), .002(a) (West 2008). The trial
court later granted a continuance of the hearing and extended the temporary
order.
2
harassing manner, going within two hundred yards of appellee’s residence or
employment, and possessing a firearm. Appellant filed a motion for new trial on
the basis, in part, that appellee had produced no evidence of family violence.
The trial court denied appellant’s motion for new trial, and he brought this appeal.
Evidentiary Sufficiency
In his sole issue, appellant argues that appellee did not present any
evidence of family violence to support the trial court’s protective order.
Construing appellant’s pro se brief liberally,4 we will review his evidentiary
sufficiency challenge under legal and factual sufficiency standards.
See Schaban-Maurer v. Maurer-Schaban, 238 S.W.3d 815, 823 (Tex. App.—Fort
Worth 2007, no pet.), disapproved on other grounds by Iliff v. Iliff, 339 S.W.3d 74,
83 n.2 (Tex. 2011); see also Clements v. Haskovec, 251 S.W.3d 79, 84–85 (Tex.
App.—Corpus Christi 2008, no pet.) (applying a legal and factual sufficiency
review to the appeal of a protective order).
We may sustain a legal sufficiency challenge only when the record
discloses a complete absence of evidence of a vital fact, the court is barred by
rules of law or of evidence from giving weight to the only evidence offered to
prove a vital fact, the evidence offered to prove a vital fact is no more than a
mere scintilla, or the evidence establishes conclusively the opposite of a vital
fact. Schaban-Maurer, 238 S.W.3d at 823 (citing Uniroyal Goodrich Tire Co. v.
4
See Hamilton v. Pechacek, 319 S.W.3d 801, 806 n.2 (Tex. App.—Fort
Worth 2010, no pet.).
3
Martinez, 977 S.W.2d 328, 334 (Tex. 1998), cert. denied, 526 U.S. 1040 (1999)).
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. Id.; see Cent. Ready Mix Concrete Co. v. Islas,
228 S.W.3d 649, 651 (Tex. 2007). ―More than a scintilla of evidence exists if the
evidence furnishes some reasonable basis for differing conclusions by
reasonable minds about the existence of a vital fact.‖ Schaban-Maurer, 238
S.W.3d at 823.
An assertion that the evidence is factually insufficient to support a fact
finding means that the evidence supporting the finding is ―so weak or the
evidence to the contrary is so overwhelming that the answer should be set aside
and a new trial ordered. We are required to consider all of the evidence in the
case in making this determination, not just the evidence that supports the
finding.‖ Id. at 823–24 (citation omitted); see Pool v. Ford Motor Co., 715 S.W.2d
629, 635 (Tex. 1986) (op. on reh’g).
―A court shall 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(a) (West 2008); Schaban-Maurer, 238
S.W.3d at 824. ―Family violence‖ includes an act by a member of a family
against another member of the family that is ―intended to result in physical harm,
bodily injury, assault, . . . or that is a threat that reasonably places the member in
4
fear of imminent physical harm, bodily injury, [or] assault, . . . but does not
include defensive measures to protect oneself.‖ Tex. Fam. Code Ann.
§ 71.004(1) (West 2008). ―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.‖ In re Epperson, 213 S.W.3d 541, 544
(Tex. App.—Texarkana 2007, no pet.); see Schaban-Maurer, 238 S.W.3d at 824
(―[E]vidence a person has engaged in abusive conduct in the past permits an
inference that the person will continue violent behavior in the future.‖).
In 1999, a court convicted appellant, pursuant to his guilty plea, for
assaulting appellee.5 According to the charging instrument in that case,
appellant and appellee were family members at the time that the assault
occurred. Appellant and appellee married in February 2006, and they have one
child together. According to appellee, near the end of September 2009, she
5
Appellant objected in the trial court to the admission of evidence
concerning this conviction on the ground that the conviction was over ten years
old. In the statement of facts section of his brief, appellant refers to rule of
evidence 609 after stating, ―No family violence could be proven in court[;] the
only information they had was over 10 years old . . . .‖ Rule 609 concerns
impeachment, and the evidence of appellant’s prior conviction was not offered for
impeachment but to prove that family violence had occurred, as the family code
requires. See Tex. R. Evid. 609(b); see also Murray v. Tex. Dep’t of Family &
Protective Servs., 294 S.W.3d 360, 369 (Tex. App.—Austin 2009, no pet.)
(holding that a trial court did not err by admitting evidence of prior convictions in a
parental termination case because ―rule 609 is not a categorical limitation on the
introduction of convictions for any purpose. Rather, it applies only to convictions
offered for purposes of impeachment.‖).
5
stopped living with appellant and moved into an apartment. Appellee testified
that almost a year later, she filed for divorce.6
Appellee testified that in the several months preceding the evidentiary
hearing, appellant had pushed her on more than one occasion. For example,
appellee testified that appellant had once pushed her off a bed with ―full force,‖
causing her to hit her head ―really hard.‖ Appellee also told the trial court that
appellant had grabbed her shoulders and wrists, which left marks and caused
pain; had cut her off and followed her closely in his car; had vandalized her
apartment; had torn her clothes; had damaged her computer and her car; and
had wrestled with her to take money. Appellee also said that on approximately
ten occasions, appellant threatened to slit her throat and to kill her; she testified
that appellant’s threats scare her. Appellee testified that she called the police
each time appellant threatened her after May 2010.7
Appellant asserts that the evidence of family violence was faulty because
appellee ―could not give accurate dates and times of the abuse that matched her
. . . Affidavit.‖ Indeed, appellee seemed to be confused or mistaken about when
6
Appellant testified, however, that he first filed for divorce because
appellee was making false allegations against him to obtain custody of their son.
7
Marsha Adams, a Fort Worth Police Department employee, testified that
she could not locate records of offense reports for domestic violence or assault
against appellee by appellant from April 1999 until September 2010. But Adams
said that she did not check for offense reports that could have been classified
under a different crime, such as harassment or criminal trespass. And, in fact,
appellant had a pending harassment charge, in which appellee was the alleged
victim, at the time of the protective order hearing.
6
the violent or threatening incidents with appellant had occurred. For example, in
her affidavit and in her initial testimony, appellee represented that in February
2010, she and appellant went to cash an income tax return, and appellant
became ―very upset because [appellee] spoke up and asked for [her] half.‖
She said that appellant then used force to take the money. But appellee later
testified that this incident occurred in February 2009, and appellant presented
evidence that his tax refund that year was directly deposited into his bank
account. Appellee then seemed to claim that the incident occurred in 2008.
Also, although appellee testified that appellant had pushed her off a bed, she
conceded at the hearing that she did not remember what month that occurred in
even though she had sworn in her affidavit that it happened in October 2009.8
Appellant testified that appellee had made false allegations against him to
try to obtain custody of their son, who, according to appellant, had been hidden
by appellee. He said that appellee had lied to police officers. He added that he
had never called appellee on the phone and threatened her, and he claimed that
the State had changed a criminal charge against him from stalking to harassment
―because [appellee] had lied.‖
Based on the discrepancies in appellee’s testimony and on appellant’s
conflicting testimony, it seems that the trial court was compelled to decide
8
Adams testified that she could not locate records of police reports or 911
calls involving appellant and appellee at either of two addresses during October
2009.
7
between two alternatives: the events described by appellee occurred even
though her memory about the details of the events was faulty, or the events did
not occur at all. By issuing the protective order and finding that appellant had
committed family violence, it is evident that the trial court found that the events
had occurred. The trial court was the sole judge of the credibility of the
witnesses, and we may not substitute our judgment for the trial court’s decision
merely because we might have reached a different conclusion. See Mar.
Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex.), cert. denied, 525 U.S. 1017
(1998); see also 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 Matthew’s
denials [of committing family violence] in their entirety.‖).
Furthermore, other witnesses’ testimony supports the trial court’s implicit
choice to believe appellee and to therefore expressly determine that appellant
had committed family violence against appellee and was likely to do so again.
Fort Worth Police Department Officer Darryl Drebing testified that appellee called
911 one afternoon about the ―harassment she was receiving from . . . [her]
estranged husband.‖ Officer Drebing met with appellee and noticed
approximately twenty-nine missed calls and about eighty text messages over the
8
course of three days in June 2010 from appellant on appellee’s cell phone.
Appellee also gave Officer Drebing flyers that, according to appellee, had been
delivered by appellant to third-parties; the substance of the flyers focused mainly
on appellant’s allegation that appellee had cheated on him, and the headline of
one the flyers referred to appellee as a ―cheating WIFE that lies, and Preach[es]
to Others about god.‖
Also, Karli Gilmore, appellee’s coworker and friend, testified that appellant
had been sending text messages that caused her concern for appellee’s safety.
Specifically, on June 6, 2010, appellant sent Gilmore a message stating, ―Both of
you bitches are spiritually dead, just waiting for the physical one. God hate[s]
traitors and worse [sic] of all cheaters . . . . [Appellee] is a 360 degree loser.‖9
The same day, appellant sent Gilmore another message stating, ―I am not saying
that I want to hurt anyone. You and slut are not worth it. I have [my son] to
worry about. . . . His mom is dead, and believe it or not it’s the best thing to
happen in his life. He just don’t know it yet.‖ Gilmore believed that appellant was
a threat to appellee’s physical safety.
Considering the foregoing evidence and the remaining facts in the record
that are favorable to the trial court’s family-violence finding if a reasonable
factfinder could and disregarding evidence contrary to the finding unless a
9
It would strain reason to conclude that this text message was part of a
―conversation regarding the rights and wrongs of the [B]ible,‖ as appellant
contends.
9
reasonable factfinder could not, we conclude that there is more than a scintilla of
evidence to support the finding. Thus, we hold that the evidence is legally
sufficient to justify the trial court’s decision to issue a protective order.
See Schaban-Maurer, 238 S.W.3d at 823. Likewise, recognizing the trial court’s
authority to determine the witnesses’ credibility and resolve conflicting evidence,
we cannot conclude that the evidence supporting the trial court’s family-violence
finding was so weak or the evidence to the contrary so overwhelming that the
finding should be set aside. See id. at 823–24. We therefore hold that the
evidence is factually sufficient.
Finally, we note that appellant argues that it was inconsistent for the trial
court to issue the protective order without ordering him to take battering
intervention classes. The family code provides that in a protective order, a trial
court may order the person who committed family violence to complete a
battering intervention program; the code, however, does not state that a court
must order the completion of such a program as part of every protective order.
Tex. Fam. Code Ann. § 85.022(a)(1) (West Supp. 2010). Thus, we do not agree
with appellant that it was inconsistent for the trial court to enter the protective
order but not order him to complete a battering intervention program.
For all of these reasons, we overrule appellant’s only issue.
10
Conclusion
Having overruled appellant’s issue, we affirm the trial court’s judgment.
PER CURIAM
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.
DELIVERED: October 27, 2011
11