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