Eric Scott Walsh v. Rebecca Leeann Gonzalez

Opinion issued June 22, 2023

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-21-00729-CV
———————————
ERIC SCOTT WALSH, Appellant
V.
REBECCA LEEANN GONZALEZ, Appellee

On Appeal from the 280th District Court
Harris County, Texas
Trial Court Case No. 2021-69526

MEMORANDUM OPINION

A father appeals the five-year protective order granted to his child’s mother

under the Texas Family Code and Chapter 7B of the Texas Code of Criminal

Procedure. In five issues, the father contends (1) insufficient evidence supports the

protective order, (2) the trial court improperly restricted his possession of and access
to the child, (3) the trial court erred by entering an order lasting more than two years,

(4) the trial court erred by awarding attorney’s fees, and (5) the trial court erred by

ordering child support. Because we agree that there was error in the attorney’s fees

award, we reverse in part as to fees and remand for further proceedings consistent

with this opinion.

Background

Eric Scott Walsh (Father) and Rebecca Leeann Gonzalez (Mother) previously

were in a dating relationship. They have a child who, at the relevant time, was one

year old.

In October 2021, Mother applied for a protective order for herself and the

child in the 280th District Court.1 Mother alleged that Father had committed family

violence by physically assaulting her three days earlier, when they exchanged the

child outside Mother’s townhouse. Mother also alleged that Father’s conduct was

“reasonably likely to harass, annoy, alarm, abuse, torment, or embarrass [her] and

[the child].”

1
The 280th District Court has been designated as the domestic-violence district court
for Harris County and gives preference to domestic-violence cases. See TEX. GOV’T
CODE § 24.112(h), (i). It is “the proper court in which to apply for a protective order
irrespective of any other action pending in any other court.” Pruneda v. Granados,
No. 01-20-00043-CV, 2021 WL 2231267, at *11 (Tex. App.—Houston [1st Dist.]
June 3, 2021, no pet.) (mem. op.) (citing In re Keck, 329 S.W.3d 658, 660 (Tex.
App.—Houston [14th Dist.] 2010, orig. proceeding)).

2
 At the hearing on Mother’s application, Father appeared pro se. He told the

trial court that he was trying to find a new attorney because his regular attorney for

family law matters did not handle protective orders. The trial court declined to

postpone the hearing for Father to retain counsel based on its assessment that Father

could have contacted an attorney earlier. Because he was charged criminally in

connection with the physical assault against Mother, Father invoked his Fifth

Amendment right against self-incrimination at the hearing.2 He did not present

evidence or cross-examine witnesses.

For her part, Mother testified that she and Father had dated. Father had a “short

fuse.” Although the October assault that prompted her to apply for a protective order

was the first physical violence between them, Father abused her verbally and

emotionally in their dating relationship. She recalled some “acts of aggression,”

including when Father flipped a couch, threw items in the house, broke a laptop, or

made her feel unsafe when she was in a car with him.

Mother and Father did not have a custody order, but they had agreed to a

visitation schedule that typically gave Father possession of the child between

12:00 p.m. and 5:00 p.m. on Wednesdays and Sundays. On Sunday, October 17,

2021, Father picked up the child from Mother’s townhouse around 11:00 a.m.

2
The trial court admitted the information charging Father with assault into the
evidence. The record does not show the disposition of the charge.
3
Mother told Father that she did not know when she would be home to take the child

back because she had plans with friends. Around 4:00 p.m., while she was with her

friends at a bar, Mother told Father she would not be home in time for the drop off.

She did not tell Father where she was, but he found her at the bar and confronted her

there, leaving the child unattended in his car. Father was frustrated but left the bar

without harming Mother.

When Mother later returned to her townhouse with a friend, J. Valdez, Father

and the child were waiting in Father’s car in the parking lot. Because Mother knew

Father was upset, she started an audio recording on her cell phone and asked Valdez

to stay inside the townhouse. According to Mother, she opened Father’s

passenger-side rear door to retrieve the child, but the child was not there. Instead,

the child was in the driver’s seat with Father. Mother opened the passenger-side front

door. Father tried to hand the child to Mother through the open door, telling her to

“take [her] f– – ing [child].” When Mother told Father to calm down, he grabbed the

child, exited the car, and struck Mother in the ribs. He then struck her two more

times on her face, first with an open hand and then with a closed fist. Father was still

holding the child when he struck Mother. He yelled that he “hate[d] [Mother],” was

“gonna hurt [her],” and was “gonna kill [her].” Hearing the yelling, Valdez came

outside, and Father “aggressively gave” her the child. Mother followed Father back

4
to his car, “let him know that he was wrong for what he did,” and opened both

passenger-side doors before Father “recklessly drove off,” doors open.

The trial court listened to Mother’s audio recording and viewed a video of part

of the incident. In the audio recording, the child can be heard crying. Although Father

is difficult to hear at times, he can be heard telling Mother to “take [her] f– – ing

[child]” and that he “f – – ing hate[s] her,” among other things. Mother yelled back,

“Are you f – – ing crazy?”; “You don’t f – – ing touch me”; and “You’re done.” At

the end of the audio recording Mother tells Valdez, “He just hit me.” The video

recording shows Father getting back in his car as Mother follows and tells him,

“You’re f – – ing done,” “You f – – ing touched me,” before opening the

passenger-side front and back doors as he drives off.

Some records of the criminal charge against Father were admitted into the

evidence, including a probable cause affidavit from the police officer who responded

when Mother reported the October incident. The probable cause affidavit states that

the officer viewed video recorded by a neighbor’s Ring doorbell camera, which

showed Father approach Mother and punch her “on her right rib area and the right

side of her face” while holding the child in his right arm.3 The officer observed

“redness and light swelling” on Mother’s face.

3
The Ring doorbell video was not offered at the hearing because, according to
Mother’s counsel, the neighbor did not respond to a subpoena.
5
 The child was not physically injured in the October incident. But Mother

testified that she feared for the child’s and her own safety. She expressed concern

that Father owned a firearm and was harassing her. She explained that Father sent

her several text messages in the days after the October incident, including text

messages containing about 50 pictures of himself in a single day.

In addition, Father threatened to withhold financial support for the child if he

was not allowed to see the child. Mother testified that in a previous suit affecting the

parent-child relationship (SAPCR), which she non-suited, Father provided his W-2

form for 2020, which showed income of $156,465. She asked the trial court to

include child support based on that amount in the protective order.

Valdez testified that she was at Mother’s townhouse when the October

incident happened. Although she was inside the townhouse at first, she came outside

when she heard yelling. She testified that Father “basically” threw the crying child

into her arms. She did not see Father hit Mother, but she saw redness on Mother’s

face. She recalled that Mother cried “hysterically” and seemed “very scared.”

Mother’s attorney, C. Thorpe, testified on attorney’s fees. She testified that

Mother had incurred $3,812.50 in fees, which included attorney’s fees billed at the

rate of $300 per hour and paralegal fees billed at the rate of $150 per hour. That

amount did not include Thorpe’s effort to subpoena Mother’s neighbors, time for the

hearing, or “some additional prep work” on the day before the hearing. Thorpe

6
requested a total fee award of $5,000 for trial. She estimated appellate fees of

$10,000 for the court of appeals and another $10,000 for the Texas Supreme Court.

Thorpe’s fee agreement and a detailed summary of her billing records were admitted

into the evidence.

At the end of the hearing, the trial court stated that it would grant the protective

order as to Mother and the child and made several oral findings, including that:

• Mother and Father “were members of the same family or household or
previously involved in a dating relationship”;

• family violence had occurred and was likely to occur in the future;

• Father committed the family violence;

• a protective order was “necessary for the safety and welfare of [Mother]
and the child,” “in the best interest of [Mother] and the child,” and
necessary for “the prevention of further family violence”;

• reasonable grounds existed to believe that Mother was a victim of
harassment under Section 42.07 of the Texas Penal Code and Chapter 7B
of the Texas Code of Criminal Procedure, as pleaded by Mother in her
application alleging that Father’s conduct was “reasonably likely to harass,
annoy, alarm, abuse, torment[,] or embarrass” Mother; and

• because of Father’s conduct, under Chapter 7B of the Code of Criminal
Procedure, the protective should be granted for longer than the “normal
two[-]year period.”
The trial court also stated that it would award temporary child support under

the Family Code guidelines based on Father’s 2020 tax return. Father responded: “I

don’t have a job, so that’s gonna be tough, but okay.” When the trial court inquired

further, Father explained that he was furloughed from his job in the automotive

7
industry about one month before the hearing—around the time of the October

incident—and no one in that industry was hiring because of “a chip shortage.” He

told the trial court that he was supporting himself with “small savings” of around

$4,000 after drawing from his retirement account.

The next week, the trial court signed a five-year protective order that

memorialized its findings at the hearing.4 The order required Father to surrender his

firearm and, among other things, prohibited him from (1) committing family

violence; (2) contacting Mother or the child, except through Mother’s attorney or

the Talking Parents program; and (3) having possession of or access to the child until

he completed nine battering intervention and prevention classes. After completing

the classes, Father was entitled to visitation supervised by the Harris County

Domestic Relations Office once every two weeks. The order also required Father to

pay Mother $1,840 per month in child support and $5000 for attorney’s fees, plus an

additional $10,000 for an appeal. The order states that Mother is “entitled to a

remittitur of ten thousand dollars ($10,000) if a petition for review is granted by the

Supreme Court of Texas.”

Father retained counsel post-judgment and moved for a new trial, arguing that

Mother’s application should have been brought in or transferred to the court that

4
The protective order states that it is effective for five years under “Section 7B.051
of the Texas Penal Code.” We note article 7B.051 is codified in the Texas Code of
Criminal Procedure, not the Penal Code. See TEX. CODE CRIM. PROC. art. 7B.051.
8
handled the previous, non-suited SAPCR and that insufficient evidence supported

the protective order. The motion was denied.

Sufficiency of the Evidence

Father’s first three issues challenge the sufficiency of the evidence to support

the protective order. Father contends the evidence is legally and factually insufficient

to support the trial court’s findings that: (1) family violence is likely to occur in the

future, (2) his access to and possession of the child should be limited, and (3) the

protective order should last more than two years. We address these issues in turn, as

necessary for the disposition of the appeal. See TEX. R. APP. P. 47.1.

A. Standard of review

We review the trial court’s findings under the legal and factual sufficiency

standards. Yang v. Cao, 629 S.W.3d 666, 670 (Tex. App.—Houston [1st Dist.] 2021,

no pet.). When a party who does not have the burden of proof at trial challenges the

legal sufficiency of the evidence, we consider all 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.

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).

If more than a scintilla of evidence exists, it is legally sufficient. Haggar Clothing

Co. v. Hernandez, 164 S.W.3d 386, 388 (Tex. 2005); Hildebrandt, 265 S.W.3d at

9
27. There is more than a scintilla of evidence if reasonable and fair-minded people

could reach differing conclusions. Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d

778, 782–83 (Tex. 2001).

In reviewing factual sufficiency, we consider all the evidence, both in support

of and contrary to, the challenged finding. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.

1996); Boyd v. Palmore, 425 S.W.3d 425, 429 (Tex. App.—Houston [1st Dist.]

2011, no pet.). We will set aside the verdict 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. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). We cannot

substitute our own judgment for the trial court’s judgment just because we might

reach a different conclusion. Boyd, 425 S.W.3d at 429. The trial court, as the

factfinder, is the sole judge of the credibility of the witnesses and the weight of their

testimony. Id. at 431.

B. Protective order standards under the Family Code and Code of Criminal
Procedure

Protective orders are governed by provisions in both the Family Code and the

Code of Criminal Procedure. Kloecker v. Lingard, No. 01-19-00533-CV, 2021 WL

2096663, at *4 (Tex. App.—Houston [1st Dist.] May 25, 2021, pet. denied) (mem.

op.); Shoemaker v. State for Protection of C.L., 493 S.W.3d 710, 715 (Tex. App.—

Houston [1st Dist.] 2016, no pet.).

10
 Under the Family Code, “an adult member of the family or household” may

apply for a protective order to protect herself or any other member of her family

against family violence. TEX. FAM. CODE § 82.002(a). Relevant here, “family”

includes “individuals who are the parents of the same child, without regard to

marriage.” Id. § 71.003. And “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). A court must enter a protective order under the Family Code if it

finds that family violence (1) has occurred and (2) is likely to occur in the future. Id.

§§ 81.001, 85.001(b).

The protective order may prohibit a person found to have committed family

violence from certain actions, including communicating with a person protected by

the order; going to or near the protected person’s residence, place of employment,

or school; engaging in conduct that is reasonably likely to harass, annoy, alarm,

abuse, torment, or embarrass the protected person; and possessing a firearm. Id.

§ 85.022(b). Generally, a family-violence protective order may not exceed two

years, but it may last longer if the court finds that the respondent “committed an act

constituting a felony offense involving family violence against the applicant or a

member of the applicant’s family or household[.]” Id. § 85.025(a), (a–1).

11
 Under the Code of Criminal Procedure, a victim of stalking, or other specified

criminal offenses, may apply for a protective order. TEX. CODE CRIM. PROC. art.

7B.001(a)(1); see TEX. PENAL CODE § 42.072. The trial court may grant a protective

order if it finds there are reasonable grounds to believe that the applicant is a stalking

victim. TEX. CODE CRIM. PROC. art. 7B.003(a); see Shoemaker, 493 S.W.3d at 717.

Stalking is a criminal offense under the Texas Penal Code. TEX. PENAL CODE

§ 42.072. Relevant here, a person commits the offense of stalking if, “on more than

one occasion and pursuant to the same scheme or course of conduct that is directed

specifically at another person,” he “knowingly engages in conduct that:”

(1) constitutes an offense under Section 42.07 . . . ;

(2) causes the other person . . . to feel harassed, annoyed, alarmed,
abused, tormented, embarrassed, or offended; and

(3) would cause a reasonable person to . . . (D) feel harassed,
annoyed, alarmed, abused, tormented, embarrassed, or offended.

Id. The Section 42.07 reference is to the harassment statute. Id. § 42.07. A person

harasses another if, “with intent to harass, annoy, alarm, abuse, torment, or

embarrass another,” he “sends repeated electronic communications in a manner

reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend

another.” Id. § 42.07(a)(7).

Thus, a Code of Criminal Procedure protective order may be issued against a

person who has, more than once, knowingly harassed another person, which caused

that person to feel harassed, annoyed, alarmed, abused, tormented, embarrassed, or
12
offended, and likewise, would have caused a reasonable person to feel the same way.

See id. §§ 42.07, .072; TEX. CODE CRIM. PROC. arts. 7B.001, .003; Shoemaker, 493

S.W.3d at 717. The protective order may prohibit the offender from engaging in

most of the actions described in Family Code Section 85.002(b), including

possessing a firearm. See TEX. CODE CRIM. PROC. art. 7B.005(a)(1). And it “may be

effective for the duration of the lives of the offender and victim or for any shorter

period stated in the order.” Id. art. 7B.007(a).

C. Sufficiency of the evidence under the Family Code

1. As to Mother

In his first issue, Father argues that the evidence is legally and factually

insufficient evidence to show that family violence is likely to occur in the future,

which is a finding necessary for the issuance of a protective order under the Family

Code. See TEX. FAM. CODE §§ 71.004, 85.001(a)(2). According to Father, the trial

court could not reasonably infer a likelihood of future family violence from the

October incident because that incident was isolated and unaccompanied by any

ongoing harassment, threats, or violence.

The Family Code does not require more than one act of family violence to

find that family violence is likely to occur in the future. See id. §§ 81.001, 85.001;

see also Boyd, 425 S.W.3d at 432. “On the contrary, courts have recognized that

‘[o]ftentimes, past is prologue; therefore, past violent conduct can be competent

13
evidence which is legally and factually sufficient to sustain the award of a protective

order.’” Boyd, 425 S.W.3d at 432 (quoting In re Epperson, 213 S.W.3d 541, 544

(Tex. App.—Texarkana 2007)). “[A]n episode of family violence, coupled with

continued harassment, permits an inference that family violence is likely to occur in

the future.” Boyd, 425 S.W.3d at 432 n.3.

Father cites three cases to illustrate the type of evidence this standard requires.

See In re Epperson, 213 S.W.3d at 543–44; Ulmer v. Ulmer, 130 S.W.3d 294, 301

(Tex. App.—Houston [14th Dist.] 2004, no pet.); Reyes v. Reyes, No.

04-02-00758-CV, 2003 WL 22238914, at *2 (Tex. App.—San Antonio Oct. 1, 2003,

no pet.) (mem. op.). In Epperson, the appellate court affirmed the finding that family

violence was likely to occur in the future on evidence that: (1) the petitioner and the

respondent became involved in a verbal confrontation that escalated into a physical

confrontation; (2) the next day, the petitioner moved out of the shared home;

(3) after the petitioner moved out, the respondent “began delivering bizarre,

sometimes threatening notes” and “began calling [the petitioner’s] workplace”;

(4) authorities found the respondent hiding under a trailer on the property behind the

house where the petitioner was staying; and (5) the petitioner perceived the

respondent’s messages and behavior as “very threatening.” Epperson, 213 S.W.3d

at 543–44. In affirming the likelihood finding, the court reasoned: “Based on the

future tense used in the notes and [the respondent’s] continuing pattern of

14
threatening behavior, it was reasonable for the trial court to conclude that [the

respondent] would commit or, at a minimum, would threaten to commit acts

constituting family violence.” Id. at 544.

Ulmer involved divorced spouses. The petitioner there testified at the

protective order hearing that, during the marriage, the respondent was “extremely

controlling,” “vengeful,” and “repeatedly threatened her life.” Ulmer, 130 S.W.3d at

297. The ex-spouses had one physical altercation in which the respondent became

enraged and shoved the petitioner. Id. After this incident, the petitioner testified, the

respondent’s aggressive behavior escalated. Id. He (1) engaged in stalking and

harassing behavior; (2) threatened that his prior threats to kill the petitioner “would

come true”; (3) verbally assaulted her at the children’s sporting events; (4) instigated

arguments at her workplace; (5) repeatedly contacted the church where the

petitioner’s boyfriend worked; (6) sat in a parked truck outside the petitioner’s

boyfriend’s house; (7) and yelled at the children if they hugged the petitioner. Id. at

297–98. The petitioner also testified that she was afraid the respondent would

“snap.” Id. at 298. The appellate court held the petitioner’s testimony describing the

physical altercation and the subsequent events was legally and factually sufficient to

support the finding of a likelihood of future family violence. Id. at 300–01.

15
 Finally, in Reyes, the appellate court held that the future family violence

finding was supported by evidence of a pattern of past threatening behavior,

including repeatedly violating past protective orders:

Amelia [the petitioner] testified that she had a previous protective order
against Miguel [the respondent] and he had violated it on six occasions,
had been arrested on four occasions for assaulting her, and was
currently serving a probated felony sentence for assault which he had
violated by contacting her. She further testified that in the six months
prior to the hearing, Miguel had vandalized her automobile and fired a
weapon in the vicinity of her home, striking her automobile twice.
Finally, she testified that she was terrified of him.
2003 WL 22238914, at *2.

According to Father, the record here is missing evidence of the type relied on

in Epperson, Ulmer, and Reyes. We disagree. Even if the quantum of evidence is

less in this case, Mother’s uncontroverted testimony is more than a scintilla of

evidence that family violence is likely to occur in the future. That is, viewed in the

light most favorable to the trial court’s finding, Mother’s testimony is more than

Father suggests.

Mother described only one instance of physical violence perpetrated against

her by Father—the October incident when he hit her once in the ribs and twice in the

face. But she also testified that Father had a “short fuse” when they dated and that

their arguments escalated “very quick[ly].” In past outbursts, Father had flipped a

couch, thrown items in the house, and broken a laptop. Before the October incident,

Father went uninvited to the bar where Mother was with her friends to confront her,

16
even though she had not disclosed her location to him. During the October incident,

Father not only physically assaulted Mother but also verbally threatened her,

including by stating that he would kill her. And after the October incident, Father

sent Mother text messages she found threatening, including as many as 50 pictures

of himself in one day. In short, the evidence that Father was quick to anger, had

previously tracked Mother to a location where he was not invited, became violent in

the October incident, and harassed Mother via text messaging after that violence is

more than a scintilla of evidence that, if not enjoined, Father would commit acts of

family violence against Mother in the future. See Boyd, 425 S.W.3d at 432 (evidence

of violent incident and harassing conduct following the incident was sufficient to

support trial court’s finding that future family violence was likely). This evidence is

also not so weak as to make the trial court’s finding of a likelihood of future family

violence clearly wrong or manifestly unjust. See id.

We overrule Father’s first issue.

3. As to the child

In his second issue, Father contends the evidence was legally and factually

insufficient evidence to support a protective order on behalf of the child. While

acknowledging it was “not healthy” for the child to be present for his physical

altercation with Mother, Father correctly points out that no evidence showed he

committed family violence against the child. Absent such evidence, he argues, the

17
trial court erred by restricting him to supervised visitation with the child during the

protective-order period because that restriction exceeded what is required to protect

the child’s best interest.5 According to Father, “any restriction on the parent-child

relationship in a protective order must be the least-restrictive necessary to protect

the child’s best interest.”

We agree with Father that the trial court did not find, and the evidence would

not support, that he committed family violence against the child. But to the extent

Father argues that finding was required, we disagree.

The trial court did not have to find that the child directly suffered family

violence before listing the child as a protected person in the protective order. The

category of people who may be protected by an order is broader than just the

applicant and those who have suffered family violence. See TEX. FAM. CODE

§ 85.001. The Family Code provides that in instances of family violence by a

member of a family or household against another member of the family or

household, “an adult member of the family or household may file an application for

a protective order to protect the applicant or any other member of the applicant’s

family or household.” Id. § 82.002(a) (emphasis added); see id. § 71.004(1); Onkst

v. Morgan, No. 03-18-00367-CV, 2019 WL 4281913, at *8 (Tex. App.—Austin

5
Although the protective order states that it is effective for five years, the trial court
instructed Father that he could return after one year for a determination of whether
the restrictions were no longer needed.
18
Sept. 11, 2019, pet. denied) (mem. op.) (court is authorized to issue protective order

including members of protected person’s family); Martin v. Martin, 545 S.W.3d 162,

168 (Tex. App.—El Paso 2017, no pet.) (even if evidence was not sufficient to show

children were victims of family violence, prohibitions in order were still appropriate

because the “protections contemplate that contact with another member of the family

might escalate and involve the protected person”). This is because an applicant’s

family members may be at risk of suffering family violence because of their

relationship to the applicant, even if they have not yet suffered harm. See Dolgener

v. Dolgener, 651 S.W.3d 242, 259 (Tex. App.—Houston [14th Dist.] 2021, no pet.).

Here, it is undisputed that the child is a member of Mother’s family and

household. See TEX. FAM. CODE §§ 71.003 (defining family), 71.005 (defining

household). Thus, Mother was authorized to request that the child be protected in

the order without requesting a finding of family violence against the child. See id.

(“[A] trial court may list a child who is a family member of a victim of family

violence as a protected person under the [protective] order, even if the child did not

directly suffer family violence.”).

In the protective order, the trial court could enjoin certain conduct or impose

conditions, as provided by Section 85.021, on any party if doing so is in best interest

of the protected person or a member of the protected person’s family or household.

See TEX. FAM. CODE §§ 85.001(b)(2), 85.021. Relevant here, the court may prohibit

19
a party from removing a child from “the possession of the person named in the order”

and “provide for the possession of and access to a child of a party if the person

receiving possession of or access to the child is a parent of the child.” Id.

§ 85.021(1)(A)(i), (3).

The trial court heard testimony that the October incident occurred during an

exchange of the child between Mother and Father. That incident, which became

violent, occurred not just in the child’s general presence but within the immediate

proximity of the child. Father was holding the child when he yelled profanity at

Mother and struck her three times. The child can be heard crying during the

confrontation in the audio recording. Before this physical altercation, when Father

sought to confront Mother at a bar that he was not invited to and had not been told

the location of, the child was in his possession but left unattended in the car. In

addition, from Mother’s testimony that Father threatened to withhold financial

support for the child after the October incident, the trial court could reasonably infer

that Father tried to use access to the child to control Mother’s behavior. Viewed in

the appropriate light, this is more than a scintilla of evidence supporting the award

of exclusive possession of the child to Mother and the requirement that Father’s

possession be supervised, and therefore it is legally sufficient. See id.

§§ 85.001(b)(2), 85.021(1)(A)(i), (3); see also Dolgener, 651 S.W.3d at 263.

Moreover, this uncontroverted evidence is not so weak as to be factually insufficient.

20
See TEX. FAM. CODE §§ 85.001(b)(2), 85.021(1)(A)(i), (3); see also Dolgener, 651

S.W.3d at 263.

We overrule Father’s second issue.

D. Sufficiency of the evidence under the Code of Criminal Procedure

In his third issue, Father contends the trial court erred by granting a protective

order effective for more than two years because it did not make the findings

necessary under the Family Code to do so. See TEX. FAM. CODE §§ 85.025(a), (a–1).

Under the Family Code, a protective order may last for longer than two years only

if the respondent:

(1) committed an act constituting a felony offense involving family
violence against the applicant or a member of the applicant’s family or
household, regardless of whether the person has been charged with or
convicted of the offense; [or]

(2) caused serious bodily injury to the applicant or a member of the
applicant’s family or household . . . .
Id. § 85.025(a–1). Father states: “[T]he [trial court’s] order does not even purport to

make findings meeting this standard, and no evidence would support such findings.”

We disagree Father has shown error in this regard.

In the written protective order, the trial court found that Mother and Father

had dated, that family violence had occurred, that family violence was likely to occur

in the future, and that Father had committed family violence. But the trial court also

found that there were reasonable grounds to believe that Father had engaged in

21
conduct that constituted harassment under Penal Code Section 42.07, which is a

basis for the offense of stalking under Penal Code 42.072, and that the conduct was

likely to occur in the future. See TEX. PENAL CODE §§ 42.07, 42.072. Relevant to

that finding, the trial court heard evidence that before and after the October incident,

Father repeatedly sent Mother text messages she found threatening. See id.

§ 42.07(a)(7) (person commits offense of harassment if “within intent to harass,

annoy, alarm, abuse, torment, or embarrass another,” he “sends repeated electronic

communications in a manner reasonably likely to harass, annoy, alarm, abuse,

torment, embarrass, or offend another”).

Although Father complains this harassment is not a “felony offense involving

family violence” that will support an extended protective order under the Family

Code, that is not controlling. The trial court issued its protective order under both

Family Code Chapter 85 and Code of Criminal Procedure Chapter 7B. And for

protective orders issued under the Code of Criminal Procedure, the order “may be

effective for the duration of the lives of the offender and victim or for any shorter

period stated in the order.” TEX. CODE CRIM. PROC. art. 7B.007(a). The trial court

thus had statutory authority to make the protective order effective for five years.

We overrule Father’s third issue.

22
 Attorney’s fees

Family Code Section 81.005 gives the trial court discretion to award

attorney’s fees to a successful protective-order applicant against the party who is

found to have committed family violence:

The court may assess reasonable attorney’s fees against the party found
to have committed family violence or a party against whom an agreed
protective order is rendered under Section 85.005 as compensation for
the services of a private or prosecuting attorney or an attorney
employed by the Department of Family and Protective Services.

TEX. FAM. CODE § 81.005(a). Again here, the trial court found Father committed

family violence, issued the protective order, awarded Mother the full amount of

attorney’s fees she requested for the trial ($5,000), an appeal to the court of appeals

($10,000), and an appeal to the Texas Supreme Court ($10,000).

In his fourth issue, Father contends these awards should be reversed because

(1) the evidence of the trial fees is legally and factually insufficient, (2) the evidence

of the appellate fees is legally insufficient, and (3) the appellate fees are not

conditioned on an unsuccessful appeal. We agree with Father in part.

A. Trial fees

Section 81.005 authorizes an award of “reasonable” attorney’s fees. Id.

§ 81.005(a). The starting point for calculating an award of attorney’s fees is

determining the reasonable hours worked multiplied by a reasonable hourly rate, and

the fee claimant bears the burden of providing sufficient evidence on both counts.

23
See Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 498 (Tex.

2019); El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 760 (Tex. 2012). “Sufficient

evidence includes, at a minimum, evidence of (1) particular services performed,

(2) who performed those services, (3) approximately when the services were

performed, (4) the reasonable amount of time required to perform the services, and

(5) the reasonable hourly rate for each person performing such services.” Rohrmoos

Venture, 578 S.W.3d at 498.

Mother’s attorney Thorpe briefly testified that she was licensed to practice

law in Texas in 2014, had exclusively practiced family law with the Skillern Firm

since then, including in cases like this one involving the prosecution or defense of

protective orders, primarily in Harris County. She also testified:

• “[i]t was necessary for [Mother] to retain [her] services and the services of
the Skillern Firm”;

• her hourly rate is $300;

• she charged an hourly rate of $150 for the “substantive legal work”
performed by paralegals;

• the “paralegals who assisted [her] on this matter traditionally performed
work done by paralegals” or were supervised by attorneys;

• Mother had incurred $3,812.50 at the time of the hearing, but that amount
did not include “subpoenas that were issued to the neighbors who did not
appear” and “some additional [trial] prep work”;

• the fees incurred by Mother are not contingent; and

• the fees incurred by Mother are “reasonable and not illegal or
unconscionable.”
24
In determining the reasonableness of the fees, Thorpe considered “the time and labor

required, the novelty and difficulty of the questions involved, . . . the skills requisite

to perform the legal services property[,] [t]he likelihood that [her] acceptance of

[her] employment with [Mother] would preclude other employment[,] and the fees

customarily charged.” Thorpe testified that Mother was requesting $5,000 for the

legal services rendered through trial.

Thorpe substantiated the hours worked with a detailed billing records

summary, which was itemized by both the practitioner (whether Thorpe or one of

three others: B. Gonzales, B. Gregg, or H. Williams) and the task performed and

then multiplied by each practitioner’s respective billing rate by quarter of an hour

worked. While this evidence supports the attorney’s fees awarded by the trial court

for Thorpe’s legal services rendered through trial, it will not sustain the entirety of

the trial fees award. See id.

We find that the fees charged for work done by Thorpe’s paralegals are not

sufficiently supported. The billing records summary shows that Mother incurred

$937.50 in attorney’s fees for work performed by two paralegals: Gregg ($825) and

Williams ($112.50). An attorney’s fee award may include compensation for work

performed by paralegals. See El Apple I, 370 S.W.3d at 763 (setting out requirements

for proof of work done by paralegals). But to recover paralegal fees, the evidence

must show: (1) the paralegal’s qualifications to perform substantive legal work,

25
(2) that the paralegal performed substantive legal work under an attorney’s direction

and supervision, (3) the nature of the legal work performed, (4) the paralegal’s

hourly rate, and (5) the number of hours the paralegal expended. Land v. Land, 561

S.W.3d 624, 642 (Tex. App.—Houston [14th Dist.] 2018, pet. denied); see Gill Sav.

Ass’n v. Int’l Supply Co., 759 S.W.2d 697, 703 (Tex. App.—Dallas 1988, writ

denied). “Paralegal fees have been denied absent such proof.” El Apple I, 370

S.W.3d at 763 (citing Moody v. EMC Servs., Inc., 828 S.W.2d 237, 248 (Tex. App.—

Houston [14th Dist.] 1992, writ denied)).

Mother addressed some of the factors for work performed by Thorpe’s

paralegals through Thorpe’s testimony that they did work traditionally performed by

paralegals or worked under the direction of an attorney and the billing records

summary showing the tasks performed, the hours worked, and the rate charged. But

no testimony or other evidence established the paralegals’ qualifications to perform

the work. A fee award cannot compensate for work performed by paralegals without

such evidence. See Mahmoud v. Jackson, No. 05-21-00302-CV, 2022 WL 2167683,

at *8 (Tex. App.—Dallas June 16, 2022, no pet.) (mem. op.) (concluding evidence

insufficient to support legal assistant fees when no evidence showed qualifications

to perform substantive legal work billed or that legal work was performed under

supervision of attorney); Land, 561 S.W.3d at 642–43 (same).

26
 Thus, we sustain that part of Father’s fourth issue challenging the legal

sufficiency of the evidence supporting the award of fees for the work performed by

Thorpe’s paralegals. We overrule Father’s fourth issue in all other respects as to the

trial attorney’s fees.

B. Appellate fees

Father’s fourth issue also challenges the award of attorney’s fees for appeals

to this Court and the Texas Supreme Court. On appellate fees, Mother only presented

Thorpe’s testimony that:

If this is appealed, [she] would estimate that the attorney’s fees on
appeal would be approximately $10,000 to the appellate court and
$10,000 to the Texas Supreme Court.

Father complains that this testimony is legally insufficient to support those fees

because, among other things, Thorpe failed to explain the reasonableness and

necessity of such fees. We agree.

Texas law allows for an award of appellate attorney’s fees if the award is

contingent upon the appellant’s unsuccessful appeal.6 Ogu v. C.I.A. Servs., Inc., No.

01-09-01025-CV, 2011 WL 947008, at *4 n.3 (Tex. App.—Houston [1st Dist.] Mar.

17, 2011, no pet.) (mem. op.); Keith v. Keith, 221 S.W.3d 156, 171 (Tex. App.—

6
Because the trial court’s award of appellate attorney’s fees is not contingent on the
results of any appeal, it is improper for that reason. Keith v. Keith, 221 S.W.3d 156,
171 (Tex. App.—Houston [1st Dist.] 2006, no pet.). But we need not resolve that
error because our holding related to the evidence of appellate fees requires a remand
for the redetermination of those fees. See TEX. R. APP. P. 47.1.
27
Houston [1st Dist.] 2006, no pet.). The Texas Supreme Court decided what is legally

sufficient evidence for a contingent award of appellate fees in Yowell v. Granite

Operating Co., 620 S.W.3d 335 (Tex. 2020). The Court explained that “with respect

to contingent appellate fees, which have not yet been incurred and thus must be

projected based on expert opinion testimony,” “[t]here is no certainty regarding who

will represent the appellee in the appellate courts, what counsel’s hourly rate(s) will

be, or what services will be necessary to ensure appropriate representation in light

of the issues the appellant chooses to raise.” Id. at 355. But “this uncertainty does

not excuse a party seeking to recover contingent appellate fees from the need to

provide opinion testimony about the services it reasonably believes will be necessary

to defend the appeal and a reasonable hourly rate for those services.” Id.

Our sister courts have reversed contingent appellate fee awards for failure to

meet the Yowell standard. See, e.g., Milliken v. Turoff, No. 14-19-00761-CV, 2021

WL 2156224, at *3 (Tex. App.—Houston [14th Dist.] May 27, 2021, no pet.) (mem.

op.); Porter v. Porter, No. 04-20-00229-CV, 2021 WL 2117923, at *4–5 (Tex.

App.—San Antonio May 26, 2021, no pet.) (mem. op.); Aguilar v. Wells Fargo

Bank, N.A., No. 07-20-00036-CV, 2021 WL 317641, at *6 (Tex. App.—Amarillo

Jan. 29, 2021, no pet.) (mem. op.); Fiamma Statler, LP v. Challis, No.

02-18-00374-CV, 2020 WL 6334470, at *19 (Tex. App.—Fort Worth Oct. 29, 2020,

pet. denied) (mem. op.); KBIDC Invs., LLC v. Zuru Toys Inc., No. 05-19-00159-CV,

28
2020 WL 5988014, at *24 (Tex. App.—Dallas Oct. 9, 2020, pet. denied); see

also U.S. Bank Nat’l Ass’n v. Lamell, No. CV H-19-2402, 2021 WL 4440179, at *3

(S.D. Tex. May 20, 2021) (order). Because Thorpe did not provide testimony about

“the services [she] reasonably believes will be necessary to defend the appeal” or “a

reasonable hourly rate for those services,” see Yowell, 620 S.W.3d at 355 (emphases

added), we conclude that legally insufficient evidence supported the award of

appellate attorney’s fees.

Father requests that if we conclude the evidence is legally insufficient, we

render judgment that Mother take nothing on her request for appellate fees. But our

sister courts that have applied Yowell to reverse a contingent award of appellate fees

have remanded for redetermination of those fees rather than render a take-nothing

judgment. See Milliken, 2021 WL 2156224, at *3; Porter, 2021 WL 2117923, at *5;

Fiamma Statler, 2020 WL 6334470, at *19; KBIDC Invs., 2020 WL 5988014, at

*24; cf. Rohrmoos Venture, 578 S.W.3d at 506 (remanding for redetermination of

fees after concluding evidence is legally insufficient to support attorney fee award).

We will do the same.

On remand, Mother is not entitled to recover attorney’s fees for work

performed on any issue on which Father succeeded on appeal. Lynch v. Lynch, 540

S.W.3d 107, 114 (Tex. App.—Houston [1st Dist.] 2017, pet. denied); see also

Chevron Phillips Chem. Co. v. Kingwood Crossroads, L.P., No. 09-14-00316-CV,

29
2017 WL 4182292, *10 (Tex. App.—Beaumont Sept. 21, 2017, no pet.) (mem. op.).

If a party is entitled to attorney’s fees from the adverse party on one claim but not

another, the party claiming attorney’s fees must segregate the recoverable fees from

the unrecoverable fees. Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 313

(Tex. 2006). Thus, on remand, the trial court should determine the reasonable

amount of appellate attorney’s fees to be awarded to Mother considering Father’s

partial success in this appeal. See Smith v. Smith, 757 S.W.2d 422, 426 (Tex. App.—

Dallas 1988, writ denied).

We sustain that part of Father’s fourth issue challenging the award of appellate

attorney’s fees.

Child support

The Family Code authorizes the trial court to require in a protective order the

“payment of support for . . . a child of a party if the person required to make the

payment has an obligation to support . . . the child.” TEX. FAM. CODE § 85.021(4).

Here, the trial court’s protective order requires Father to pay Mother $1840 monthly

in child support. Father contends in his fifth issue that, in awarding this amount, the

trial court misapplied the child support guidelines in Chapter 154 of the Family

Code. See id. §§ 154.001–.309. According to Father, the guidelines required the trial

court to set his child support obligation at a lower amount based on the federal

minimum wage. In support, Father cites his own testimony that he was unemployed,

30
that circumstances in the automotive industry prevented him from working, and that

he had about $4,000 to live on, which was what remained from what he had taken

from his retirement savings. And he correctly points out that the trial court made no

finding that he was intentionally unemployed or underemployed for the purpose of

calculating his support obligation.

Assuming without deciding that the Chapter 154 guidelines apply to a support

obligation established by a protective order and that Father’s statements to the trial

court during its rendition are evidence,7 we disagree with Father that the trial court

had to calculate a lower amount of child support. Under Chapter 154, the trial court

must “calculate net resources” to determine a party’s child support obligation. Id.

§ 154.062(a). “Resources” include, among other things, all wage and salary income,

interest, dividends, self-employment income, rental income, and all other income

actually being received, such as retirement benefits. Id. § 154.062(b). “There must

be some evidence of a substantive and probative character of net resources in order

for the trial court to discharge its duty under section 154.062.” Miles v. Peacock, 229

S.W.3d 384, 389 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (quotation omitted).

Without evidence of the wage and salary income of a party, a court shall presume

7
Mother complains that Father’s testimony about his financial circumstances is not
evidence because it was given after the parties rested and during the trial court’s
rendition of its ruling. Given our disposition of this issue, we need not address this
complaint. See TEX. R. APP. P. 47.1.
31
that the party has wages or salary equal to the federal minimum wage for a 40–hour

week. TEX. FAM. CODE § 154.068.

Father’s argument that the trial court should have calculated his support

obligation based on the federal minimum wage rests on assumptions that his

testimony was the only evidence of his resources and that the trial court was required

to believe his testimony. These assumptions are incorrect. As the factfinder, the trial

court was not required to accept Father’s evidence of his net resources as true.

Kinney v. Batten, No. 01-21-00394-CV, 2023 WL 2316354, at *11 (Tex. App.—

Houston [1st Dist.] Mar. 2, 2023, no pet. h.) (mem. op.). Instead, the trial court could

determine that Father had higher net resources than he alleged based on (1) Mother’s

unobjected-to and uncontradicted testimony that he worked, or had worked, for Audi

and that his W-2 federal tax form for 2020, which he disclosed in the prior non-suited

SAPCR, showed $156,465 in income; (2) Father’s testimony that he had been

furloughed for only one month before the protective order hearing; and (3) Father’s

testimony that he had retirement savings.

Accordingly, we overrule Father’s fifth issue.

Conclusion

For the reasons stated, we reverse that part of the trial court’s judgment

awarding Mother paralegal fees and that part of the trial court’s judgment awarding

Mother attorney’s fees for appeals to this Court and the Texas Supreme Court. We

32
remand to the trial court for further proceedings at which the trial court shall delete

the paralegal fees awarded to Mother and redetermine the appellate fees, consistent

with this opinion. We otherwise affirm.

Sarah Beth Landau
Justice

Panel consists of Justices Landau, Countiss, and Guerra.

33