Crystal Dolgener v. Steven Dolgener

Affirmed and Plurality and Concurring Opinions filed August 31, 2021.

In The

Fourteenth Court of Appeals

NO. 14-19-00645-CV

CRYSTAL DOLGENER, Appellant

V.
STEVEN DOLGENER, Appellee

On Appeal from the 280th District Court
Harris County, Texas
Trial Court Cause No. 2019-27998

OPINION

Appellant Crystal Dolgener appeals a protective order entered in favor of her
husband, appellee Steven Dolgener.1 In eleven issues we have reorganized, Crystal
argues: the evidence was legally and factually insufficient to support a finding that
(1) Crystal committed family violence against Steven, (2) Crystal committed
family violence against P.D., (3) Crystal committed family violence against the

1
We will refer to individuals with the same last name by their first name.
parties’ children thereby necessitating listing them as “protected persons,” (4)
Crystal was likely to commit family violence in the future; and the protective order
court abused its discretion when it (5) awarded Steven exclusive possession of the
parties’ children and ordered supervised visitation for Crystal, (6) awarded Steven
exclusive possession of the marital residence, (7) awarded Steven exclusive
possession of the parties’ vehicle, (8) awarded Steven attorney’s fees, (9) signed an
order releasing supersedeas funds deposited by Crystal to Steven’s attorney, and
(10) denied Crystal’s motion to transfer the protective order. Crystal also raises an
issue of due process, arguing (11) the trial court violated due process principles
and abused its discretion by preventing Crystal from calling a witness at trial.2 We
affirm.

I. BACKGROUND

During their marriage, Crystal and Steven had three daughters: L.D., S.D.,
and D.D.3 Steven also has a son from a previous relationship, P.D. On January 11,
2019, Steven left the marital residence and separated from Crystal. On April 22,
2019, Steven filed an application for a protective order in the 280th Judicial
District Court of Harris County against Crystal on behalf of himself and the four
children. On April 23, 2019, Steven filed for divorce, and the case was assigned to
the 245th Judicial District Court. In his live pleading, Steven alleged that Crystal
“engaged in conduct that constitutes family violence as defined in [§] 71.004 of the
Texas Family Code” against Steven and P.D., and that there was good cause for
prohibiting Crystal from communicating with Steven and P.D., except through the
parties’ attorneys. See Tex. Fam. Code Ann. § 71.004. Steven also requested that

2
Steven has not filed a brief to assist us in the resolution of this appeal.
3
We use initials to protect the minor’s identities. See Tex. R. App. P. 9.8 cmt.; see also
Tex. Fam. Code Ann. § 109.002(d). At the time of trial, L.D., S.D., and D.D. were aged five,
two, and one, respectively.

2
the trial court award him: exclusive possession of L.D., S.D., and D.D.; possession
of the marital residence; possession of one of the community vehicles; and
attorney’s fees.

A. TRIAL4

Trial on the protective order began on June 24, 2019.5 The trial court heard
testimony from: the parties (Steven and Crystal); Crystal and Steven’s neighbor
(Joseph Heiliger); Steven’s sister (Lisa Mulvaney); Steven’s brother-in-law and
Lisa’s husband (Doug Mulvaney); a therapist (John Douglas Trani, Ph.D.); and on
the issue of attorney’s fees, Steven’s attorney (Melissa Pickett).

1. Evidence Presented by Steven

a. Joseph Heiliger

Heileger testified that on January 5, 2019, while in his neighbor’s driveway,
he witnessed Crystal, in the front yard of the house with the children present,
yelling at Steven and trying to stop Steven from leaving the house by standing in
front of him and blocking him from getting into his car to leave. Heiliger stated
Crystal accused Steven of destroying and abandoning the family, while Steven was
attempting to leave the house. While Steven and Crystal were arguing, P.D. walked
down the street past Heileger’s house and Steven followed him. Crystal re-
arranged the vehicles to prevent Steven from leaving in the car. Heileger further
testified that Steven went back to his house to attempt to retrieve some of his

4
According to Crystal, she “also filed an [a]pplication for [p]rotective order against
Steven [and] the two applications were heard by the 280th Judicial District Court at the same
time.” The reporter’s record supports her contention; the trial court called cause no. 2019-35892
and the “companion case 2019-27998” to trial on June 24, 2019.
5
We note that the cover page for some of the volumes of the reporter’s record state that
trial began on February 14, 2019. However, this date must be incorrect because the protective
order was not filed until April 22, 2019. The remainder of reporter’s record from the first day of
trial indicates that trial began on June 24, 2019.

3
clothes and a bag, but he was not able to do so.

Heiliger testified to similar incidences of Steven and Crystal arguing outside
in the yard, and stated he never saw Steven put his hands on Crystal but that he
witnessed Crystal push Steven. Heiliger testified that, during the January incident,
Steven seemed lucid and did not smell of alcohol.

b. Steven

Steven testified about incidents and altercations involving him and Crystal.
In the summer of 2018, he and Crystal were arguing and Crystal punched Steven in
the chest and shoulder area. Steven also testified about other incidents in 2018
when Steven tried to leave the house or go to work and Crystal prevented him from
leaving by barricading herself against the door while holding the children or by
hugging Steven and refusing to let go.

Steven testified that he left the residence he shared with Crystal on January
11, 2019. Steven testified that on the day before he left, Crystal was cussing and
swearing from around 10:00 a.m. that day until 3:00 a.m. the next day. According
to Steven, Crystal referred to P.D. and Steven by numerous derogatory and
insulting terms. Steven testified that while their five-year-old daughter was in the
room, P.D. turned off the light and Crystal turned the light back on, several times,
and verbally threatened P.D. with physical harm if he turned his light off again. He
stated he pleaded with Crystal to stop, but that Crystal continued yelling and
screaming.

The next day Crystal continued her altercation with P.D., and Steven was
“done.” As P.D. came down the stairs, Crystal would not let him pass, and Steven
“had to grab her again to move her to the side of the stairwell” so that P.D. could
make it past Crystal. As Steven tried to leave, Crystal grabbed and tore his shirt

4
and started blocking the doors in an attempt to prevent him from leaving. After
Steven managed to exit the house, Crystal told L.D. and S.D. that Steven was
trying to leave, instructed them to sit on Steven’s car, and Crystal stood behind the
car, telling Steven to go back inside the house. At that point, Steven walked down
the street to look for P.D. in an attempt to diffuse the situation.

On January 16, 2019, Steven agreed to meet Crystal at a Wal-Mart parking
lot. As Steven approached Crystal’s car, Crystal opened her car door, grabbed and
twisted Steven’s shirt, and began yelling and screaming at Steven, while their
children were in the car. When Steven was able to walk away, Crystal repositioned
her car to prevent Steven from getting into his car.

On January 27, 2019, Steven went out drinking with friends. At the end of
the night, a friend got an Uber to take Steven to his sister’s home, where Steven
had been staying since his separation from Crystal. However, Steven fell asleep in
the Uber and the driver took Steven to the address on his driver’s license—the
home he had shared with Crystal. Steven fell asleep in the house, and when he
woke up, Crystal was hitting him and telling him to leave. Steven said Crystal
punched him and hit him across the head and that one of his daughters witnessed
Crystal striking him. Steven left in an attempt to prevent the children from seeing
any further physical altercation.

At 6:30 a.m. on January 30, 2019, Steven sent an email to Crystal informing
her that he was no longer going to direct deposit his checks into their bank account
because Crystal had withdrawn “$2,500 or $2,700” that week and also two weeks
prior. Crystal texted Steven 144 times and called him 123 times that day and filed a
criminal assault charge against Steven that afternoon. Crystal continued to call and
text Steven many times in the days that followed. On February 8, 2019, as a result
of Crystal’s criminal complaint, a no contact order was put in place, yet Crystal

5
continued to text and call Steven. Crystal texted Steven multiple times on February
8–11, 13, and 25–27. “And after 30 days of doing that, I think Crystal . . . went
back up to the courthouse to amend the no contact [order].”

On April 14, 2019, Steven, his sister (Lisa), Lisa’s husband (Doug), and his
nephew went to play golf. That day, Crystal called Steven 121 times requesting
that Steven meet with her. Crystal eventually went to the golf course with the girls
in the car, and drove up to the car Steven was in, to pin him in. Crystal then rolled
down her car windows, and yelled and screamed at Steven while the girls were in
the back seat. The five-year-old child started crying.

Steven and his family members decided to have Steven and Crystal continue
their conversation at the parking lot of a nearby police station,6 where Crystal
continued to yell and scream at Steven and call him derogatory and insulting
names. Police officers approached their vehicles; Crystal accused Steven of
drinking and driving and said she had been trying to find Steven all day.

On April 15, 2019, Steven met with Pickett and another attorney to pursue a
divorce. While at the consultation with Pickett, Steven could not access his phone
because Crystal was calling “almost every second for almost an hour or two.”

On April 16, 2019, Crystal showed up at the restaurant where Steven worked
part-time,7 held onto to Steven, and refused to leave until she was informed by
Steven’s co-worker that their manager was calling the police. Steven then filed the
underlying suit requesting a protective order.

Steven addressed Crystal’s allegations of abuse by him. Specifically, Steven
said he has been the cause of bruising on Crystal at times because he’s had to

6
Lisa and Doug described the parking lot as being adjacent to a court.
7
Steven also works part-time as a realtor.

6
restrain her from attacking P.D. and move her out of the way. Steven explained
that Crystal would scream at P.D. while standing right in front of P.D.

The trial court admitted into the record Steven’s exhibits showing the
voluminous records of Crystal’s text messages between January 30, 2019, and June
15, 2019.8 The exhibits show Crystal texted Steven repeatedly, often multiple times
a minute, in an aggressive tone or an insulting manner. In particular, Crystal
repeatedly accused Steven in the text messages of being abusive and an alcoholic.

c. Lisa Mulvaney

Regarding the April 14, 2019, incident in the golf course parking lot, Lisa,
Steven’s sister, testified that Crystal called Steven constantly for three hours while
they were playing golf, and then sped over to where they were, blocking Steven’s
car, and yelling and screaming profanities at Steven with Steven and Crystal’s
three daughters in the car.

Lisa testified she saw the sheriffs in the parking lot talking to Steven and
Crystal while the children were in the car crying. The police officers told Lisa that
Crystal told them that Steven had been driving around drunk. Lisa told the officers
this was false because she had been with Steven for at least five hours and had not
seen him drink.

Lisa testified that there were many times when Crystal called her home
repeatedly, so much that they had to take their phone off the hook on several days.
Lisa also testified that Crystal constantly called, emailed, and texted Steven,
describing the numerous attempts at contact a “barrage.” Lisa testified she did not
think Steven had a drinking problem based on what she had observed since

8
Approximately 500 pages of records of text messages between Steven and Crystal were
admitted into evidence, with some pages containing as many as nineteen messages on a single
page. With few exceptions, the text messages were sent by Crystal.

7
January. Lisa testified that Steven is not a violent or abusive person and that she
did not think that Steven had a domestic violence issue towards Crystal. Finally,
Lisa testified that Steven had been driving her and Doug’s Lexus.

d. Doug Mulvaney

Doug’s testimony regarding the events that unfolded after the family
members finished playing golf on April 14 was consistent with Lisa’s testimony—
Steven went golfing with Doug, Lisa, and their son; as they approached their cars
when they were leaving, Crystal drove her vehicle towards them with the children
in her car and blocked Steven from leaving; Crystal was yelling obscenities at
Steven telling him to get in the car; the children were in Crystal’s car and upset;
they decided to drive Steven to a nearby courthouse so that Crystal and Steven
could talk; Crystal alleged Steven was driving drunk; and Doug denied Crystal’s
allegation.

Doug never witnessed Steven act violent towards Crystal and never saw
Crystal strike Steven, and he had not seen Steven drink “too much alcohol” in the
five months since his separation from Crystal. Doug stated he witnessed ten or
more incidents since January of 2019 where Crystal was screaming at Steven on
the phone. Doug also testified regarding Crystal’s repeated calls to their home
phone.

Finally, Doug testified that Crystal sent him and Lisa pictures of bruises on
her body and that he asked Steven about them. According to Doug, Steven told
him that the bruises were defensive because Steven had to move Crystal when he
was afraid Crystal would attack P.D. and when she was blocking the door crying
and screaming while the girls were in another room.

8
 e. Melissa Pickett

Pickett, Steven’s attorney, asked the court to order Crystal to pay $9,209 in
reasonable and necessary attorney’s fees and costs. On the last day of trial, Picket
informed the court that she “spent an additional hour over the weekend in
preparation and then have been at court for three hours,” and increased the amount
requested to $10,609.

2. Evidence Presented by Crystal

a. Dr. John Douglas Trani

Dr. Trani testified he is a psychologist and that he began seeing Crystal and
Steven about six or seven years prior to trial to assist them in their attempts to
obtain custody of P.D. Dr. Trani testified about his observations regarding Crystal
during the six months preceding trial and explained that Crystal is conflicted about
her relationship with Steven, that Crystal gets “extremely angry” with Steven at
times, and that Crystal’s emotions at times are “extreme.” Dr. Trani testified that,
in the six months prior to trial, Crystal sent him pictures of bruises which Crystal
alleged were caused by Steven and pictures of Steven “passed out from alcohol
intoxication laying on the floor.” Dr. Trani was previously unaware of such issues,
and Crystal told him that “she did not in the past want anybody to know about any
of this . . . because she was trying to protect him.”

Dr. Trani testified he did not observe anything or know anything about
Crystal that made him think she was a danger to her daughters. As to P.D., Crystal
“would become extremely angry, yelling, you know, just the intensity of the anger
was a ten on the scale of one to ten, but I don’t think she would have ever hit him
or done anything physical to him but, certainly, not to the girls.” Dr. Trani did not
think that Crystal was mentally unstable, but he agreed that a parent texting

9
someone 144 times in one day is an issue and that a child should not hear you
screaming at your spouse. Dr. Trani never saw Steven scream at Crystal or
witnessed anything to indicate that Steven was physically violent towards her, but
Crystal had repeatedly talked about Steven’s alleged abuse.

b. Crystal

Crystal testified that she and Steven began dating after meeting ten years
prior to trial. She stated that Steven has always been a heavy drinker. According to
Crystal, she pushed Steven to reduce his drinking, but he did not. Crystal alleged
that Steven was verbally and emotionally abusive because he would insult her and
call her derogatory names when he was drunk.

Crystal testified that Steven sought to modify his custody of P.D. in
November and December of 2018.9 Crystal stated that the litigation caused Steven
to drink more and the abuse happened more.

Crystal alleged the physical abuse first occurred one time at the beginning of
their relationship,” and occurred again after the birth of their our first child. Crystal
stated Steven manhandled her, grabbed her forcefully, and choked her. The trial
court admitted into evidence Crystal’s pictures showing bruises on her body that
were taken on different occasions, including when she was pregnant with their
third child. Crystal stated that the bruises on her arm were as a result of Steven
manhandling her and also alleged that Steven threw a box at her. Crystal testified
that the last time Steven hurt her was on January 27, 2019—the night Steven was
dropped off by Uber, at their home.

Crystal testified she let Steven into the house on January 27, that she could
smell alcohol on him, and that Steven slurred his words. Crystal testified that

9
Crystal also testified that initially sought custody of P.D. in 2015 from P.D.’s Mother.

10
Steven was grabbing her, and that she told him he needed to leave before the girls
woke up. Crystal said she woke up and found Steven in a state of undress, and that
Steven started to scare her and thought he might hurt her. She stated she had the
front door open and was yelling for him to leave, and he was yelling and asking
where his car and stuff were. She told him she did not know, and denied having
Steven’s wallet, keys, or cell phone. Crystal filed criminal charges against Steven
three days later on January 30, 2019.

Crystal also disputed Steven’s version of events of the 2018 incident in the
car where Steven accused Crystal of hitting him. Crystal alleged that Steven was
intoxicated at the time, that she was driving, that the girls were in the back of the
car, and that Steven hit her with his “backhand.” Crystal also denied grabbing
Steven’s shirt and twisting it at the Wal-Mart parking lot on January 16, 2019. As
to the incident in the golf course parking lot, Crystal testified that Steven told her
he was at the golf course and that she believed Steven was drinking, although she
conceded she did not see him drink and did not smell alcohol on him. She
explained her concern that day was that Steven was going to drink and drive.

According to Crystal, she blocked Steven’s exit from their house “[s]o the
children wouldn’t see, so that he didn’t leave and drive drunk in his car with him or
with his son and also fighting desperately to save my marriage.” Crystal testified
Steven’s testimony that her bruises were caused by him moving her out of the way
was not accurate. Crystal testified she does not think it is abusive to keep someone
from being able to leave their home, to keep someone from leaving their own
bedroom, to block someone’s car and keep them from leaving, to call someone
hundreds of times, or to text someone repeatedly to answer the phone.

Crystal explained that her repeated text messages and phone calls were
because “we have children together. He had taken all of the money. I needed help.”

11
Crystal conceded that she had called Steven insulting and derogatory terms in
2019, but she denied that she was emotionally abusive to Steven and testified she
did not think that calling Steven obscene and insulting terms numerous times
repeatedly was emotionally abusive. Crystal accused P.D. of being abusive towards
her.

Crystal testified about one of the videos admitted into evidence. In the video,
Crystal is sitting in front of the bedroom door, and yelling and screaming at Steven
to get her glasses. Crystal alleges that Steven ripped the glasses off her face and
threw them across the room. In the video, Crystal accuses Steven of drinking,
being verbally abusive, and hurting her wrist. In the video, Steven and Crystal
argue and Crystal screams; Steven attempts to leave but Crystal blocks the door,
preventing Steven from leaving. At trial, Crystal stated that, before the video was
recorded, Steven came home and became enraged when she asked how much he
had to drink, and choked her in front of their children. She also testified that he
pinned her down and put his knee in her chest. Crystal alleged that Steven hit her
on the head on January 5, 2019, and on January 10, 2019, became enraged and
called her a derogatory name and hit her on the chest.

B. TRIAL COURT’S RULING

On July 23, 2019, the trial court signed a final protective order finding that
Crystal committed family violence and family violence is likely to occur in the
future. The Court further found that the protective order is “for the safety and
welfare and in the best interest of [Steven] and other members of the family and
[is] necessary for the prevention of family violence.” The order defined “Protective
Person” as: “[Steven], and [L.P., S.D., D.D., and P.D.]”

The court also awarded Steven exclusive possession of the children, the
parties’ residence and the parties’ Chevrolet Traverse, and ordered that Crystal’s
12
periods of possession be supervised, that she vacate the home, that she complete a
psychological evaluation with a mental health professional, and that she pay
$10,609 in attorney’s fees to Pickett. The trial court’s order prohibits Crystal, in
relevant part, from: committing family violence; removing L.D., S.D., and D.D.
from Steven’s possession; communicating in any manner with Steven and P.D.,
except with Steven about their children’s health, education, and activities; and
going within 200 feet of the parties’ residence, the school of any of the protected
persons, and Steven’s place of employment. The order states that “all relief
requested in the Application for Protective Order but not expressly granted is
denied” and was set to expire on July 22, 2021.10

C. EVENTS SUBSEQUENT TO THE TRIAL COURT’S RULING

1. Motion to Transfer

On August 6, 2019, after the trial court signed the final protective order,
Crystal filed in the 280th District Court, a motion to transfer the protective order to
the 245th District Court. Crystal’s motion states that: the protective order was
rendered during the pendency of the divorce action in the 245th District Court and
argued that: (1) the protective order would affect conservatorship, rights and
duties, and support in the divorce matter; and (2) having all matters addressed by
one court would be more convenient for the parties.11 See Tex. Fam. Code Ann.
§ 85.064(a) (providing that a court may transfer a protective order if the transfer is
in the interest of justice or for the safety or convenience of a party or witness). The
280th District Court denied the motion the same day.

10
Generally, a protective order is effective for a period not to exceed two years. See Tex.
Fam. Code Ann. § 85.025(a).
11
Steven filed for divorce on April 23, 2019, the day after he filed for a protective order.

13
 2. Notice of Appeal

On August 22, 2019, Crystal timely filed her notice of appeal.

3. Funds Deposited to Supersede Judgment

On September 17, 2019, Crystal filed a “Notice of Deposit in Lieu of Bond
to Supersede Judgment.”12 The notice of deposit stated that Crystal deposited
$11,188.80 with the Harris County District Clerk’s Court Registry “to secure the
judgment for attorney’s fees awarded in this case while the case is pending
appeal.” See Tex. R. App. P. 24.1(a)(3), (c)(1); see also Tex. Civ. Prac. & Rem.
Code Ann. § 52.006(a), (b).

At a motion hearing on September 25, 2019, Steven asked the trial court “to
consider whether [Crystal] has complied with the protective order, specifically, as
to attorney’s fees.” Steven argued that Crystal “had filed a notice of lis pendens
pending appeal for the attorney’s fees” and that a lis pendens was “not proper”
because “protective order attorney’s fees are not like attorney’s fees in a civil
case.” Steven asked the trial court “to find that [Crystal] is not in compliance and
to either order her to comply with the payment of attorney’s fees by a date certain
and/or to order the District Clerk to release the funds that are held in the registry”
of the court.

The trial court asked the parties to submit briefs on the issue. On November
20, 2019, the trial court signed an order releasing $10,834.27 of the funds to
Pickett. See Tex. Fam. Code Ann. § 81.006(a) (providing that the amount of fees
collected under this chapter as compensation for the fees of a private attorney
“shall be paid to the private attorney”).

12
The body of this “notice” only sought to suspend “the sum of compensatory damages
awarded in the judgment, interest for the estimated duration of the appeal, and costs awarded in
the judgment.”

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 II. MOOTNESS

We first address the issue of mootness, which we raise sua sponte. See M.O.
Dental Lab v. Rape, 139 S.W.3d 671, 673 (Tex. 2004) (per curiam) (“[W]e are
obligated to review sua sponte issues affecting jurisdiction.”). The protective order
expired on July 22, 2021. Generally, mootness defeats a court’s subject-matter
jurisdiction over a particular controversy. See Messier v. Messier, 458 S.W.3d 155,
161 (Tex. App.—Houston [14th Dist.] 2015, no pet.); Robinson v. Alief Indep. Sch.
Dist., 298 S.W.3d, 324 (Tex. App.—Houston [14th Dist.] 2009, pet. denied) (“The
mootness doctrine precludes a court from rendering an advisory opinion in a case
where there is no live controversy.”); Thompson v. Ricardo, 269 S.W.3d 100, 103
(Tex. App.—Houston [14th Dist.] 2008, no pet.) (“[I]f a judgment cannot have a
practical effect on an existing controversy, the case is moot and any opinion issued
on the merits in the appeal would constitute an impermissible advisory opinion.”).

Nonetheless, the “collateral consequences” exception to the mootness
doctrine allows an appellate court to review a case after it becomes moot. Marshall
v. Housing Auth. of the City of San Antonio, 198 S.W.3d 782, 788–89 (Tex. 2006);
State of Protec. of Cockerham v. Cockerham, 218 S.W.3d 298, 302–03 (Tex.
App.—Texarkana 2007, no pet.). While a matter of first impression for this Court,
other intermediary courts of appeal have concluded that, under the collateral-
consequences exception, an expired protective order based on a finding of family
violence is reviewable because the “effects of a protective order carry significant
collateral legal repercussions and a social stigma . . . .” Martin v. Martin, 545
S.W.3d 162, 167 (Tex. App.—El Paso 2017, no pet.); Clements v. Haskovec, 251
S.W.3d 79, 84 (Tex. App.—Corpus Christi–Edinburg 2008, no pet.); Schaban-
Maurer v. Maurer-Schaban, 238 S.W.3d 815, 823 (Tex. App.—Fort Worth 2007,
no pet.), disapproved on other grounds by Iliff v. Iliff, 339 S.W.3d 74, 83 (Tex.

15
2011); Cockerham, 218 S.W.3d at 303; James v. Hubbard, 21 S.W.3d 558, 660–61
(Tex. App.—San Antonio 2000, no pet.). We agree with the courts of appeal that
have reviewed this issue and conclude that the collateral consequences exception
applies to protective orders under Chapter 85 of the Family Code. See Tex. Fam.
Code Ann. § 153.004(f) (mandating that a trial court must consider the issuance of
protective order under Chapter 85, Title 4 of the Family Code in determining child
custody); Martin, 545 S.W.3d at 167; see also In re N.G., 577 S.W.3d 230, 234
(Tex. 2019) (per curiam). Because the protective order is based on allegations of
abuse directed towards a spouse and children—allegations that carry significant
legal repercussions and social stigma—Crystal is entitled to appellate review. See
Martin, 545 S.W.3d at 167.

III. EVIDENTIARY SUFFICIENCY

In her first issue, Crystal argues there was legally and factually insufficient
evidence to support a finding that she committed family violence against Steven. In
her second issue, Crystal argues the evidence was legally and factually insufficient
to support a finding that she committed family violence against P.D. and that
family violence was likely to occur against him in the future. In her third issue,
Crystal argues that the evidence was legally and factually insufficient to support a
finding that L.D., S.D., and D.D. were victims of family violence, and therefore,
the trial court erred when it included them as “protected persons” under the order.
In her fourth issue, Crystal argues the evidence was legally and factually
insufficient to support a finding that she was likely to commit family violence in
the future.

A. APPLICABLE LAW

“A court shall render a protective order as provided by [§] 85.001(b) if the
court finds that family violence has occurred and is likely to occur in the future.”
16
Tex. Fam. Code Ann. § 81.001; see id. § 85.001(a) (“At the close of a hearing on
an application for a protective order, the court shall find whether: (1) family
violence has occurred; and (2) family violence is likely to occur in the future.”).
“Family violence” means:

(1) 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;
(2) abuse, as that term is defined by [§] 261.001(1)(C), (E), (G), (H),
(I), (J), (K), and (M), by a member of a family or household
toward a child of the family or household; or

(3) dating violence, as that term is defined by [§] 71.0021.

Id. § 71.004; see also id. §§ 71.003 (defining “family”), 71.005 (defining
“household”).

A family member’s actions can meet the definition of family violence if they
involve a threat that reasonably places the other family member in fear of
imminent harm. Burt v. Francis, 528 S.W.3d 549, 553 (Tex. App.—Eastland 2016,
no pet.); Boyd v. Palmore, 425 S.W.3d 425, 430 (Tex. App.—Houston [1st Dist.]
2011, no pet.). “Even in circumstances where no express threats are conveyed, the
factfinder may nonetheless conclude that an individual was reasonably placed in
fear.” Burt, 528 S.W.3d at 553–54; see also Wilmeth v. State, 808 S.W.2d 703, 706
(Tex. App.—Tyler 1991, no pet.) (noting that even without verbal threats, a
reasonable person may be placed in fear by a menacing glance and hand gesture).
Intentionally or knowingly causing physical contact with another when the person
knows or should reasonably believe that the other will regard the contact as
offensive or provocative also meets the statutory definition. See Tex. Fam. Code

17
Ann. § 71.004(1); Tex. Pen. Code Ann. § 22.01(a)(3) (defining assault). Given the
remedial nature of the Family Code’s protective order provisions, courts broadly
construe its provisions to effectuate its humanitarian and preventative purposes.
Burt, 528 S.W.3d at 553; Boyd, 425 S.W.3d at 430; see Rodriguez v. Doe, 614
S.W.3d 380, 685 (Tex. App.—Houston [14th Dist.] 2020, no pet.).

B. STANDARD OF REVIEW

We review the trial court’s findings in a protective order proceeding that
family violence has occurred and is likely to occur in the future for legal and
factual sufficiency. See Caballero v. Caballero, No. 14-16-00513-CV, 2017 WL
6374724, at *3 (Tex. App.—Houston [14th Dist.] Dec. 14, 2017, no pet.) (mem.
op) (reviewing findings of past family violence and of a likely occurrence of
family violence in the future for legal and factual sufficiency); Vongontard v.
Tippit, 137 S.W.3d 109, 113 (Tex. App.—Houston [1st Dist.] 2004, no pet.)
(same); see also In re Doe, 19 S.W.3d 249, 253 (Tex. 2000) (“The abuse of
discretion standard applies when a trial court has discretion either to grant or deny
relief based on its factual determinations.”); but see Thompson v. Thompson
O’Rear, No, 06-03-00129-CV, 2004 WL 1243080, at *2 & n.1 (Tex. App.—
Texarkana June 8, 2004, no pet.) (mem. op.) (acknowledging that other courts
apply legal and factual sufficiency standard of review but applying abuse of
discretion standard of review).

1. Legal Sufficiency

Evidence is legally sufficient if, viewing all the evidence in the light most
favorable to the fact-finding and considering undisputed contrary evidence, a
reasonable factfinder could form a firm belief or conviction that the finding was
true. In re A.C., 560 S.W.3d 624, 631 (Tex. 2018). In conducting a legal-
sufficiency review, the reviewing court cannot ignore undisputed evidence
18
contrary to the finding, but it must otherwise assume the factfinder resolved
disputed facts in favor of the finding. Id. at 630–31.

2. Factual Sufficiency

In a factual sufficiency review, we examine the entire record and consider
and weigh all the evidence, both in support of, and contrary to, the challenged
finding. See id. Having considered and weighed all the evidence, we should set
aside the judgment only if the evidence is so weak, or the finding so against the
great weight and preponderance of the evidence, that it is clearly wrong and unjust.
Boyd, 425 S.W.3d at 429 (citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986));
see In re A.C., 560 S.W.3d at 631.

C. ANALYSIS

We address the legal and factual sufficiency of the court’s findings as to
each individual named in the protective order in turn.

1. Steven

In her first issue, Crystal argues the evidence was legally and factually
insufficient to support a finding that she committed family violence against Steven.

Here, the trial court heard the following testimony:

• Heiliger testified that Crystal pushed Steven when he was attempting to
leave the house;

• Steven testified that Crystal punched him across his chest and shoulder area
when they were arguing in their vehicle;

• Steven testified that Crystal “kept grabbing” him on the day he tried to leave
the house, tearing his shirt, and that Crystal was “blocking the doors”;

• Steven and Heiliger testified that Crystal blocked Steven’s car when he
attempted to leave the house;

19
 • Steven testified that Crystal quickly grabbed his shirt “with two handfuls”
and “twisted it” when they met at a Walmart parking lot, while “yelling and
screaming” and while he told her to let go;

• Steven, Lisa, and Doug testified about Crystal confronting Steven at the golf
court parking lot, and Steven testified she did so by “accelerat[ing] really
fast” in her car and parking behind his car to “pin” him in;

• Steven testified Crystal texted him that she wished he would die; and

• Steven testified Crystal punched and hit him on the night when he was
dropped off at the house by an Uber.
This legally sufficient evidence supports a finding that Crystal committed
family violence against Steven. See Tex. Fam. Code Ann. § 71.004(1); Boyd, 425
S.W.3d at 430 (concluding that appellant committed act of family violence when
he blocked appellee’s car with his body and jumped on the hood of the car);
Clements, 251 S.W.3d at 85–86 (concluding appellant committed act of family
violence by raising his fist and making other threats though he never actually
struck a family member); see also Jackson v. Jackson, No. 01-14-00952-CV, 2015
WL 8940117, at *4 (Tex. App.—Houston [1st Dist.] Dec. 15, 2015, no pet.) (mem.
op.); Valenzuela v. Munoz, No. 01-12-0660-CV, 2013 WL 4678682, at *3 n.1
(Tex. App.—San Antonio Aug. 28, 2013, no pet.) (mem. op.) (noting that two
discrete instances of actual physical contact between plaintiff and defendant was
sufficient to support family violence finding, but noting that “other alleged actions
that night, such as [defendant’s] ‘SWAT-style’ sweep of [plaintiff’s] home or
attempt to take their son while intoxicated, would . . . also support a finding of
family violence”).

Crystal denied ever being abusive towards Steven and argued that her
actions were fueled by her concerns regarding Steven’s drinking and driving while
intoxicated. However, the testimony from Heiliger, Steven, Lisa, and Doug

20
controverted Crystal’s allegations that her behavior was in reaction to Steven’s
behavior. The trial court as the finder of fact was free to disbelieve Crystal’s
testimony regarding the basis for her actions and believe evidence to the contrary.
See Golden Eagle Archery, Inc v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003).
Having reviewed the record as a whole, we cannot conclude that a finding of
family violence against Steven was so weak or so against the great weight and
preponderance of the evidence that it is clearly wrong and unjust. See Boyd, 425
S.W.3d at 429. Therefore, we conclude the evidence is factually sufficient to
support a finding that Crystal committed family violence against Steven. See id. at
433 (concluding evidence was factually sufficient notwithstanding defendant’s
denials and explanations as to his behavior).

We overrule Crystal’s first issue.

2. P.D.

In her second issue, Crystal argues that there was insufficient evidence that
she committed family violence against P.D. and that family violence was likely to
occur against P.D. in the future. Therefore, Crystal argues, the trial court erred by
including P.D. in the protective order.

First, we note that the trial court’s order does not provide that it found that
Crystal committed family violence against P.D.; rather, the order states “[t]he court
finds that family violence has occurred and that family violence is likely to occur
in the future.” In other words, the order does not identify the individual or
individuals against whom Crystal was found to have committed family violence.
Nevertheless, Steven’s petition alleges that Crystal committed family violence
against Steven and P.D., not the other children.

Here, Steven testified that “there [have] been times when [Crystal] has been

21
aggressive with [P.D.] and I had to restrain her from pretty much attacking him,”
that Crystal threatened to knock P.D.’s teeth out, and that Crystal would “pin
[P.D.] in a room and she will be within an inch of his face yelling and screaming at
the top of her lungs and literally foaming at the mouth.” Steven testified P.D. was
“scared” during one of these interactions with Crystal. It is reasonable to infer from
this testimony that Crystal placed P.D. in fear of imminent physical harm. See Tex.
Fam. Code Ann. § 71.004(1); Boyd, 425 S.W.3d at 430.

Viewing this evidence in the light most favorable to the trial court’s ruling,
we conclude that the evidence was legally sufficient to support a finding that
Crystal committed family violence against P.D. See Clements, 251 S.W.3d at 85
(affirming finding of family violence against husband even though husband had
not physically struck his wife or daughter); see also Pruneda v. Granados, No. 01-
20-00043-CV, 2021 WL 2231267, at *8 (Tex. App.—Houston [1st Dist.] June 3,
2021, no pet. h.) (mem. op.) (“[F]amily violence may exist not only in situations
involving physical harm, but also in those where the family member subject to the
protective order places another family member in ‘fear of imminent physical
harm.’”).

We note that Dr. Trani testified he did not believe Crystal would be violent
towards P.D., although he acknowledged she had extreme anger towards P.D. and
that her anger towards P.D. was a ten out of one to ten. Crystal testified “[n]obody
helped [P.D.] the way I did” and that P.D., “towards the end, was starting to be
abusive to me, disrespectful to me.” Specifically, Crystal alleged P.D. “wrestled”
her to the ground, “shoved” her, and insulted her. As to the incident Steven
testified about where Crystal cornered P.D. while she screamed, Crystal stated that
P.D.’s “behavior was, again, out of control” and that Steven and P.D. “were both
attacking me and I just kept asking, let me please go take a bath.”

22
 As the sole judge of the witnesses’ credibility, the trial court was free to
believe Steven and disbelieve Crystal, and we must defer to that determination. See
Golden Eagle Archery, 116 S.W.3d at 761. Having reviewed the record as a whole,
we cannot conclude that a finding of family violence against P.D. was so weak or
so against the great weight and preponderance of the evidence that it is clearly
wrong and unjust. Therefore, we conclude the evidence is factually sufficient to
support a finding that Crystal committed family violence against P.D. See Boyd,
425 S.W.3d at 433.

We overrule Crystal’s second issue.13

3. L.D., S.D., & D.D.

In her third issue, Crystal argues the evidence was legally and factually
insufficient to support a finding that L.D., S.D., and D.D. were victims of family
violence and that family violence was likely to occur against them in the future. As
a result, Crystal argues, the trial court erred in including L.D., S.D., and D.D. as
“protected persons” under the order and prohibiting Crystal from going to or near
the residence and the children’s school or childcare facilities. See Tex. Fam. Code
Ann. § 85.022(b)(4) (allowing a court to prohibit a person subject to a protective
order from “going to or near the residence, child-care facility, or school of a child
protected under the order normally attends or in which the child normally resides”)
(emphasis added).

Here, the trial court’s order provides:

The Court finds that family violence has occurred and that family
violence is likely to occur in the future. The Court finds that
Respondent, [Crystal], has committed family violence. The Court
13
For the reasons explained in subsection 4, infra, we also reject Crystal’s argument that
the evidence was legally and factually insufficient to support a finding that violence was likely to
occur against P.D. in the future.

23
 finds that the following protective orders are for the safety and
welfare and in the best interest of [Steven] and other members of the
family and are necessary for the prevention of family violence.

....

In this order, “Protected Person” means, [Steven], and [L.P., S.D.,
D.D., and P.D.]”

The trial court’s order does not explicitly state that Crystal committed family
violence against L.D., S.D., and D.D., and Steven did not allege in his petition that
Crystal committed family violence against the girls. In essence, Crystal argues, the
trial court must have found that family violence was committed against the girls
because they are listed in the final protective order as “protected persons.”

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.” See Tex. Fam. Code Ann. §§ 71.004(1),
82.002(a). It is undisputed that L.D., S.D., and D.D. are members of Steven’s
family. See id. § 71.003, (defining family), see also id. §§ 71.005 (defining
household), 71.006 (defining member of a household). Therefore, Steven was
authorized to request that L.D., S.D., and D.D. be protected in the order, as he
requested in his petition, without requesting that the court make a finding as to
family violence against L.D., S.D., and D.D. Steven did not introduce any evidence
of Crystal committing family violence against L.D., S.D., and D.D., and there was
no testimony introduced during the protective order hearing to support a finding of
family violence against L.D., S.D., and D.D.

We previously concluded that the evidence was legally and factually
sufficient to find that Crystal committed family violence against Steven and P.D.
24
After the trial court made a finding of family violence against Steven and P.D., it
was required to enter a protective order as provided by § 85.001(b). See id.
§ 81.001 (“A court shall render a protective order as provided in [§] 85.001(b) if
the court finds that family violence has occurred and is likely to occur in the
future.”). Section 85.001 does not limit the protected persons listed under the order
to solely the applicant or the individuals who suffered family violence. See id.
§ 85.001. This is because an applicant’s family members may be at risk of
suffering family violence as a result of their relationship to the applicant, even
though they have not yet suffered harm. See Martin, 545 S.W.3d at 168. Therefore,
we conclude that a trial court may list a child who is a family member of a victim
of family violence as a protected person under the order, even if the child did not
directly suffer family violence. See Tex. Fam. Code Ann. §§ 71.004(1),
82.002(a)(2); Boyd, 425 S.W.3d at 430 (“Given the remedial nature of Title IV of
the Texas Family Code (of which the [provisions concerning protective orders] are
a part), courts should broadly construe its provisions so as to effectuate its
humanitarian and preventative purposes.”); see also Tex. Fam. Code Ann.
§ 85.022(b)(3) (providing that a trial court “may prohibit the person found to have
committed family from” “going to or near the residence, child-care facility, or
school a child protected under the order normally attends or in which the child
normally resides”). For these same reasons, we also reject Crystal’s argument that
a finding of future violence against L.D., S.D., and D.D. was a prerequisite to
including them as a protected persons under the protective order.

Because there was no finding of family violence as to L.D., S.D., and D.D.,
we overrule Crystal’s third issue.

4. Future Family Violence Finding

In her fourth issue, Crystal argues there is legally and factually insufficient

25
evidence to support the trial court’s finding that “family violence is likely to occur
in the future.”

a. Applicable Law

“The statutory language of [§ 85.001] does not require that a likelihood
finding [of future family violence] be based on more than one act of family
violence.” Boyd, 425 S.W.3d at 432; see Tex. Fam. Code Ann. § 85.001. On the
contrary, courts have recognized that oftentimes past is prologue; therefore, past
violent conduct can be competent evidence which is legally and factually sufficient
to sustain the award of a protective order. Martin, 545 S.W.3d at 168; Boyd, 425
S.W.3d at 432; Clements, 251 S.W.3d at 87; see Teel v. Shifflett, 309 S.W.3d 597,
604 (Tex. App.—Houston [14th Dist.] 2010, pet. denied) (“The trial court
reasonably could have concluded that future violence is likely to occur based on
the testimony showing a pattern of violent behavior.”); In re Epperson, 213
S.W.3d 541, 543–44 & n.3 (Tex. App.—Texarkana 2007, no pet.) (concluding that
past and continuing pattern of behavior showed applicant was reasonable in fearing
respondent would commit acts of “family violence” in the future). While a pattern
of family violence is sufficient to support a likelihood finding, a pattern is not a
necessary prerequisite to such a finding. Boyd, 425 S.W.3d at 432 n.3. “[A]n
episode of family violence, coupled with continued harassment, permits an
inference that family violence is likely to occur in the future.” Id. at 432 n.2; see
also Teel, 309 S.W.3d at 604 (concluding that evidence that parent engaged in
abusive or neglectful conduct in the past permits an inference that the parent will
continue this behavior in the future).

b. Analysis

Here, there was sufficient evidence supporting a finding that Crystal
committed family violence against Steven and P.D.
26
 i. Steven

The record indicates that Crystal often communicated with Steven by
yelling, cursing, and repeating insults and derogatory accusations, both verbally
and via text message, and that she also included Steven’s family and other
acquaintances in her communications. Crystal’s tone and personal attacks escalated
in tone and frequency until the protective order hearing, as evidenced by the
testimony of the witnesses and the voluminous text-messages contained in the
record.

The trial court could reasonably have concluded that violence was likely to
occur in the future based on a pattern of violent behavior. See Teel, 309 S.W.3d at
604; Martin, 545 S.W.3d at 168; Clements, 251 S.W.3d at 87; In re Epperson, 213
S.W.3d at 544. Furthermore, Crystal denied the incidents occurred and that any of
her actions were abusive, which the trial court was free to disbelieve. When there
is no expression of remorse, a reasonable fact finder might also conclude that
history will repeat itself. See Martin, 545 S.W.3d at 168. Likewise, Crystal’s
violations of the no contact order entered after she filed criminal charges against
Steven supports an inference that Crystal presented a risk of future harm. See
Kuzbary v. Kuzbary, No. 01-14-00457-CV, 2015 WL 1735493, at *6 (Tex. App.—
Houston [1st Dist.] Apr. 13, 2015, no pet.) (mem. op.).

Despite Crystal’s argument that her actions were fueled by a concern about
Steven’s drinking and potentially driving while intoxicated, there was evidence in
the record that contradicted her testimony that Steven had a drinking problem and
was frequently driving while intoxicated. Specifically, Heiliger testified he did not
smell alcohol on Steven and that Steven was “very lucid” when he witnessed
Crystal preventing Steven from leaving the house. Lisa and Doug testified that
Steven did not have an alcohol problem and was not driving while intoxicated on

27
the day of the golf course incident, contrary to Crystal’s allegations. Furthermore,
in the videos in the record where Crystal is heard accusing Steven of drinking and
of being an abuser, Steven is mild mannered and patient in responding to Crystal’s
aggressive and loud verbal attacks and accusations. Under the applicable standards
of review, we conclude that the evidence is legally and factually sufficient to
support a finding that Crystal is likely to commit family violence against Steven in
the future. See Teel, 309 S.W.3d at 604; see also Puente v. Puente, No. 01-18-
00583-CV, 2019 WL 3418510, at *5 (Tex. App.—Houston [1st Dist.] July 30,
2019, no pet.) (mem. op.) (concluding that evidence that respondent’s behavior
escalated over time and that applicant moved out of marital home because of fear
of respondent, viewed in conjunction with evidence of past family violence, would
allow a reasonable factfinder to conclude that future family violence was likely).

ii. P.D.

As to P.D., there was evidence that Crystal committed acts of family
violence against him and had several angry outbursts towards P.D. Crystal did not
deny these incidents. There was also evidence that Crystal harbored strong feelings
of anger towards P.D., even after Steven and Crystal separated. Dr. Trani testified
that he did not believe Crystal could be violent towards P.D., but he acknowledged
that Crystal’s anger towards P.D. was ten out of one to ten. Viewing the evidence
in the light most favorable to the finding, we conclude there was legally sufficient
evidence to support a finding that violence is likely to occur in the future. See In re
A.C., 560 S.W.3d at 630–31. Furthermore, having reviewed the record, we cannot
conclude the finding was so weak or so against the great weight and preponderance
of the evidence that it is clearly wrong and unjust. See Boyd, 425 S.W.3d at 429.
Therefore, we conclude the evidence is factually sufficient.14 See id. at 432–33;

14
Crystal also argues that Steven no longer has custody of P.D. because he gave custody
28
Teel, 309 S.W.3d at 604; Clements, 251 S.W.3d at 87–88.

We overrule Crystal’s fourth issue.

IV. AWARDS IN THE ORDER

In her fifth issue, Crystal argues the trial court abused its discretion when it
awarded Steven exclusive possession of L.D., S.D., and D.D. and ordered her
possession be supervised. In her sixth issue, Crystal argues the trial court abused its
discretion when it awarded Steven exclusive possession of the marital residence. In
her seventh issue, Crystal argues the trial court abused its discretion when it
awarded Steven exclusive possession of the parties’ Chevrolet Traverse.

A. STANDARD OF REVIEW

We review the prohibitions and awards entered in a protective order for an
abuse of discretion. See Tex. Fam. Code Ann. §§ 85.021 (providing prohibitions a
trial court may enter against any party to a protective order), 85.022(b) (providing
prohibitions a trial court may enter in a protective order against the aggressor found
to have committed family violence); In re Doe, 19 S.W.3d at 253 (“The abuse of
discretion standard applies when a trial court has discretion either to grant or deny
relief based on its factual determinations.”); Rodriguez, 614 S.W.3d at 38 (noting
that § 85.022(b) gives the trial court discretion to prohibit certain conduct). A trial
court abuses its discretion if it acts arbitrarily or unreasonably or without reference
to guiding rules or principles. Flowers, 407 S.W.3d at 457; see Worford v.
Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam).

of P.D. back to P.D.’s mother. At trial, Crystal testified that Steven did not have custody of P.D.
at that time because “he was giving [P.D.] back to save his marriage.” Therefore, Crystal argues,
“there is no reason to believe Crystal would have any interaction or involvement with P.D. in the
future.” We disagree. Future family violence against P.D. could still occur even if Steven does
not have possession of him because Crystal could still seek out P.D. Furthermore, this does not
preclude time when Steven may have visitation or possession of P.D., including at family events,
such as birthdays, where P.D. could be present. Thus, we reject this argument.

29
B. APPLICABLE LAW

“The scope of family violence protective orders will vary considerably
depending on the circumstances.” Rodriguez, 614 S.W.3d at 385. If the court finds
that family violence has occurred and that family violence is likely to occur in the
future, then the court shall render a protective order as provided by § 85.022,
applying only to the person found to have committed family violence. Id.
§ 85.001(b)(1). In the protective order, the trial court may also impose prohibitions
and awards, as provided by § 85.021, on any party, if the conditions are in the best
interest of the person protected by the order or member of the family or household
of the person protected by the order. See id. §§ 85.001(b)(2), 85.021. Section
85.021 provides that the trial court may:

(1) prohibit a party from:

(A) removing a child who is a member of the family or household
from:

(i) the possession of a person named in the order; or
(ii) the jurisdiction of the court;

(B) transferring, encumbering, or otherwise disposing of property,
other than in the ordinary course of business, that is mutually
owned or leased by the parties; . . .

(2) grant exclusive possession of a residence to a party and, if
appropriate, direct one or more parties to vacate the residence if the
residence

(A) is jointly owned or leased by the party receiving exclusive
possession and a party being denied possession;

....

(3) 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;
30
 (4) require the payment of support for a party or for a child of a party if
the person required to make the payment has an obligation to support
the other party or the child; or

(5) award to a party the use and possession of specified property that is
community property or jointly owned or leased property.
Id. § 85.021; see id. § 85.001(b)(2); see also id. § 85.003.

C. ANALYSIS

1. Possession of L.D., S.D., and D.D.

In her sixth issue, Crystal argues the trial court abused its discretion when it
awarded Steven exclusive possession during the pendency of the protective order
of L.D., S.D., and D.D. and ordered that Crystal’s supervision be supervised.

Under the Family Code, the trial court was authorized to “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(3). It is undisputed
that Steven is a parent of L.D., S.D., and D.D. Steven’s petition requests that the
trial court grant him exclusive possession of the children. As noted, the trial court
heard testimony that (1) the children were present on several occasions when
Crystal yelled at Steven, used profanity and insults towards Steven, and became
physically aggressive towards Steven; (2) Crystal called and texted Steven for
hours when she was supposed to be caring for the children; and (3) Crystal at times
used the children to prevent Steven from leaving.

There was evidence that the award of exclusive possession of L.D., S.D.,
and D.D. to Steven and the requirement that Crystal’s possession be supervised
was for the protection of the children. Section 85.021(3) of the Family Code allows
the trial court to make a provision for “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

31
child.” Id. Given this evidence, we cannot say the trial court acted arbitrarily or
unreasonably or without reference to guiding rules or principles in awarding
exclusive possession of the children to Steven and ordering Crystal’s possession be
supervised. See id. §§ 85.001(b)(2), 85.021(3); see also Floyd v. Floyd, No. 05-15-
00997-CV, 2016, WL 4690030, at *3 (Tex. App.—Dallas Sept. 7, 2016, no pet.)
(mem. op.); Vives v. Gersten, No. 05-13-01463-CV, 2014 WL 7498016, at *4
(Tex. App.—Dallas Dec. 29, 2014, no pet.) (mem. op.); Maki v. Anderson, No. 02-
12-01463-CV, 2014 WL 7498016, at *4 (Tex. App.—Fort Worth Aug. 15, 2013,
pet. denied) (mem. op.) (per curiam); In re A.S.B., 2009 WL 2461286, at * 4.

We overrule Crystal’s fifth issue.

2. Possession of the Marital Residence

In her sixth issue, Crystal argues the trial court abused its discretion when it
awarded Steven exclusive possession of the marital residence during the pendency
of the protective order.

Under the Family Code, the trial court is authorized to “grant exclusive
possession of a residence to a party and, if appropriate, direct one or more parties
to vacate the residence if the residence . . . is jointly owned or leased by the party
receiving exclusive possession and a party being denied possession . . . .” Tex.
Fam. Code Ann. § 85.021(2)(A). It is undisputed that the residence is jointly
owned by Crystal and Steven.

The trial court heard testimony that the house is where Steven, Crystal, and
the children lived prior to Steven leaving the home. There was testimony that
Steven left the residence because of Crystal’s behavior. In an email sent to the
parties’ attorneys, the trial court stated, “Mom to vacate the home since dad will
have the children and the children need to be in a stable place and not moved

32
around.” Given the evidence presented to the trial court, it would be reasonable to
award exclusive possession of the residence to Steven in light of the findings of
family violence and the award to Steven of exclusive possession of L.D., S.D., and
D.D.

Because the trial court was authorized by statute to add this condition to the
protective order, and because there was evidence supporting its decision and a
conclusion that the decision was in best interest of Steven and the children, we
overrule Crystal’s sixth issue. See id. §§ 85.001(b)(2), 85.021(2)(A); see also
Floyd, 2016 WL 4690030, at *3; Vives, 2014 WL 7498016, at *4; Maki, 2014 WL
7498016, at *4.

3. Possession of the Vehicle

In her seventh issue, Crystal argues the trial court abused its discretion when
it awarded Steven exclusive possession of the parties’ Chevrolet Traverse during
the pendency of the protective order.

The trial court was authorized to “award to a party the use and possession of
specified property that is community property or jointly owned or leased property.”
Tex. Fam. Code Ann. § 85.021(5). Steven’s petition includes a request that the trial
court award him “the use and possession of one of the community property
vehicles in the possession of” Crystal. It is undisputed that the Traverse is jointly
owned by Crystal and Steven.

Crystal argues that “[t]he evidence showed that Steven had access to another
vehicle and in fact had been driving another vehicle since January 2019.” There
was undisputed evidence that Lisa, Steven’s sister, and her husband Doug, allowed
Steven to use their vehicle. Further, there was evidence that Steven is the sole
source of income for Crystal and the children, and that Steven worked two part-

33
time jobs, as a realtor and a waiter. Because Steven was awarded exclusive
possession of L.D., S.D., and D.D., and was the sole source of income for the
children, the trial court’s award of the Traverse to Steven was not unreasonable,
arbitrary, or without reference to guiding rules or principles. See id.
§§ 85.001(b)(2), 85.021(5); see also Floyd, 2016 WL 4690030, at *3; Vives, 2014
WL 7498016, at *4; Maki, 2014 WL 7498016, at *4.

Crystal argues that the Traverse was “mostly for her” and that she “had
always driven that vehicle.” However, Crystal does not argue that the Traverse was
her only means of transportation. We note that Crystal fails to acknowledge or
mention in her brief that the couple also owned another vehicle, which, according
to text messages admitted into evidence, was in Crystal’s possession.

We overrule Crystal’s seventh issue.15

15
In a single sentence, Crystal states that the trial court did not award exclusive use and
possession of any vehicle to either party “[i]n the trial court’s original rendition.” In support,
Crystal points to a chain of email communications between the 280th District Court and Pickett
and Marquis under the title “Status of Dolgener protective order rendition.” In the emails, the
trial court states that it “grants” Steven’s application for a protective order, that it “denies”
Crystal’s application, and it provides some of the terms included in the signed final protective
order. However, Crystal presents no citations to appropriate authority or argument challenging a
discrepancy between the alleged rendition and the signed order. Therefore, Crystal’s challenge, if
any, to this award on the basis that the order signed did not comply with the court’s “rendition”
is waived. See Tex. R. App. P. 38.1(i) (“The brief must contain a clear and concise argument for
the contentions made, with appropriate citations to authorities and to the record.”); see, e.g., West
v. Triple B. Servs., LLP, 264 S.W.3d 440, 456 (Tex. App.—Houston [14th Dist.] 2008, no pet.)
(concluding that sub-issue was inadequately briefed because appellant’s brief contained “no
argument, analysis, or legal authorities to support its assertion”). Furthermore, Crystal did not
object to the entry of the final order on this basis. See Tex. R. App. P. 33.1(a)(1). Finally, the
emails clarify that the court was still researching matters pertaining to requests in Steven’s
application; that it was still deciding matters, such as the issue of attorney’s fees and possession
of the home; and that a final order was yet to be drafted. In any event, rendition of a judgment
occurs when the trial court officially announces its decision (1) in open court in a manner that
objectively reflects its intention to render, or (2) by written memorandum filed with the clerk.
See Burns v. Bishop, 48 S.W.3d 459, 465 (Tex. App.—Houston [14th Dist.] 2001, no pet.). Here,
the email communication was not an official announcement of the trial court’s decision in open
court, nor was it a written memorandum filed with the clerk. See id.

34
 V. ATTORNEY’S FEES

In her eighth issue, Crystal argues the trial court abused its discretion when
it awarded attorney’s fees to Steven because “there was no evidence presented as
to Crystal’s income and ability to pay the fees.”

A. Applicable Law & Standard of Review

The trial court “may assess reasonable attorney’s fees against the party
found to have committed family violence . . . 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 Ann. § 81.005(a). “In setting the
amount of attorney’s fees, the court shall consider the income and ability to pay of
the person against whom the fee is assessed.” Id. § 81.005(b). We review the trial
court’s award of attorney’s fees in a protective order proceeding for an abuse of
discretion. See Sylvester v. Nilsson, No. 14-19-00901-CV, 2021 WL 970924, at *6
(Tex. App.—Houston [14th Dist.] Mar. 16, 2021, no pet.) (mem. op.)

“This court has held that [§] 81.005 ‘creates a divided burden of proof on the
issue of the amount of attorney’s fees to be assessed in a family violence protective
order case.’” Id. at *8 (quoting Ford v. Harbour, No. 14-07-00832-CV, 2009 WL
679672, at *6 (Tex. App.—Houston [14th Dist.] Mar. 19, 2009, no pet.) (mem.
op.)). Steven, as the applicant for a family violence protective order that included a
request for attorney’s fees, had the initial burden to request and provide competent
evidence proving he incurred reasonable attorney’s fees as a result of applying for

Crystal also argues that “[t]he trial court refused to hear testimony regarding Crystal’s
access to another vehicle, and effectively precluded her from offering evidence as to why she
needed use of the Traverse.” However, Crystal presents no argument or authority challenging
this evidentiary ruling by the trial court. Therefore, this argument is also waived. See Tex. R.
App. P. 38.1(i); see, e.g., West, 264 S.W.3d at 456. Furthermore, even if the argument was not
waived, the trial court would not have abused its discretion in awarding Steven the Traverse,
even if Crystal needed use of the Traverse, for the reasons identified above.

35
and prosecuting his application for a protective order. See Tex. Fam. Code Ann.
§ 81.005(a); Sylvester, 2021 WL 970924, at *8. In response, Crystal was obligated
to provide evidence addressing her ability to pay the attorney’s fees sought by
Steven. See Tex. Fam. Code Ann. § 81.005(b); Sylvester, 2021 WL 970924, at *8.

B. Analysis

In support of Steven’s request for attorney’s fees, Pickett testified Steven
incurred $10,609 in reasonable and necessary attorney’s fees as a result of her legal
representation.

Because Crystal’s burden under § 81.005(b) was not to deny the fees
incurred by Steven, but to avoid being assessed some or all of those fees because
of an independent reason—i.e., her inability to pay—the burden is in the nature of
an affirmative defense. See Tex. Fam. Code Ann. § 81.005(a); Sylvester, 2021 WL
970924, at *8; see also Ford, 2009 WL 679672, at *6 (noting that this division of
the burden of proof also makes logical sense because “it imposes the burden of
proof on the party with the best access to the required information”). Therefore,
Crystal, in seeking the trial court’s denial of an attorney fee award to Steven, had
the burden to come forward with evidence of her inability to pay. See Tex. Fam.
Code Ann. § 81.005; Sylvester, 2021 WL 970924, at *8; Ford, 2009 WL 679672,
at *6. However, as Crystal’s argument on appeal concedes, she did not introduce
any evidence of her income or inability to pay. As a result, we overrule her eighth
issue.

VI. ATTEMPT TO SUPERSEDE THE ATTORNEY’S FEES AWARD

In her ninth issue, Crystal argues the trial court abused its discretion “by
signing an order releasing supersedeas funds from the Harris County District
Clerk’s Court Registry.” Crystal attempted to suspend the enforcement of the

36
award of attorney’s fees to Steven by filing a “NOTICE OF DEPOSIT IN LIEU
OF BOND TO SUPERSEDE JUDGMENT” along with $11,188.80.

A. APPLICABLE LAW

The purpose of a supersedeas bond is to preserve the status quo by staying
the execution or enforcement of the judgment or order appealed from, pending the
appeal. Haedge v. Cent. Tex. Cattlemen’s Assoc., 603 S.W.3d 824, 829 (Tex. 2020)
(per curiam). Filing appellate security (1) assures the appellee that it will be able to
collect the judgment if the case is affirmed on appeal and (2) abates the remedies
for collecting the judgment during the appeal. Hanna v. Godwin, 876 S.W.2d 454,
456 n.3 (Tex. App.—El Paso 1994, no writ); see Edlund v. Bounds, 842 S.W.2d
819, 832 (Tex. App.—Dallas 1992, writ denied). While the appeal is pending, the
trial court cannot release the bond. See Muniz v. Vasquez, 797 S.W.2d 147, 150
(Tex. App.—Houston [14th Dist.] 1990, no writ).

The amount of bond or deposit in lieu of bond required to suspend a
judgment depends on the type of judgment. See Tex. R. App. P. 24.1, 24.2(a); In re
Sheshtawy, 154 S.W.3d 114, 121 & n.58 (Tex. 2004) (orig. proceeding); see also
In re K.K.W., No. 05-16-00795-CV 2018 WL 1477533, at *3 (Tex. App.—Dallas
Mar. 27, 2018, no pet.) (mem. op.); Fuentes v. Zaragoza, No. 01-16-00251-CV,
2016 WL 3023811, at *2 (Tex. App.—Houston [1st Dist.] May 26, 2016, no pet.)
(mem. op.); Kohannim v. Katoli, No. 08-11-00155-CV, 2011 WL 2586779, at *2
(Tex. App.—El Paso June 29, 2011, no pet.) (mem. op.). “When the judgment
involves the conservatorship or custody of a minor or other person under legal
disability, enforcement of the judgment will not be suspended, with or without
security, unless ordered by the trial court.” Tex. R. App. P. 24.2(a)(4).16

16
Upon a proper showing, an appellate court may also suspend enforcement of the
judgment with or without security, when the judgment involves the conservatorship or custody of
37
B. ANALYSIS

Here, the judgment involved the custody of minors: L.D., S.D., and D.D.
Specifically, the protective order provided that: (1) Crystal is “[p]rohibited from
removing [L.D.], [S.D.], [and D.D.] from the possession of STEVEN
DOLGENER”; (2) Steven “is granted exclusive possession of the children: [L.D.,
S.D., and D.D.]. until further order of the family court and documentation from the
mental health professional”; and (3) Crystal is granted supervised visitation of
L.D., S.D., and D.D.

The protective order required Crystal to pay Steven’s attorney’s fees. See id.
To suspend the enforcement of the judgment, Crystal had to obtain an order from
the trial court suspending the enforcement of the judgment, rather than filing a
bond or a deposit in lieu of bond. See Tex. R. App. P. 24.2(a)(4). Crystal did not do
so. As a result, she did not supersede the protective order and the attorney’s fee
award associated with the order. See id.17

Crystal argues the trial court could not release the funds because a trial court
may not, “as a matter of law, order supersedeas funds released from the Court
Registry while a case is on appeal.” See Muniz, 797 S.W.2d at 150 (“While the trial

a minor child. Tex. R. App. P. 24.2(a)(4); see, e.g., Marquez v. Marquez, No. 08-12-00129-CV,
2012 WL 1555204, at *1 (Tex. App.—El Paso May 2, 2012, no pet.) (mem. op.) (per curiam).
17
Crystal’s arguments on appeal ignore Rule 24.2(a)(4) and instead rely on 24.2(a)(1).
See Tex. R. App. P. 24.2(a)(1), (4). However, because the order here involved the custody of
Crystal and Steven’s minor children, the applicable rule is 24.2(a)(3). See Tex. R. App. P.
24.2(a)(3). For this reason, we reject Crystal’s arguments categorizing attorney’s fees as “costs.”
See In re Skero, 253 S.W.3d 884, 886–88 (Tex. App.—Beaumont 2008, orig. proceeding) (per
curiam) (concluding that attorney’s fees “are costs incidental to and of the same nature as the
protective order remedy, and are a means for enforcement” and rejecting appellant’s argument
that Article I, § 18 of the Texas Constitution prohibits a contempt and commitment order based
on the failure to pay an attorney’s fees award in a protective order). Furthermore, we note that
the conclusion in Skero contradicts the subsequent holding by the Texas Supreme Court that
attorney’s fees are neither compensatory damages nor costs. See In re Nalle Plastics Fam. Ltd.
P’ship, 406 S.W.3d 168, 176 (Tex. 2013) (orig. proceeding).

38
court has limited jurisdiction under Tex. R. App. P. 47(k) during appeal as
custodian of supersedeas funds set in either its court or the appellate court, the trial
court has absolutely no authority to disburse those funds.”). However, the funds at
issue here did not supersede any judgment. Therefore, Crystal’s funds were not
“supersedeas funds”; rather, they were simply funds in the registry of the trial
court.

Because the judgment was not superseded, we cannot conclude the trial
court erred when it released funds to Pickett to satisfy the attorney’s fees award.
See Tex. Fam. Code Ann. § 81.006(a); Tex. R. Civ. P. 308; In re Sheshtawy, 154
S.W.3d at 118 (“[W]hen a final judgment is not superseded, not only does a trial
court have ‘jurisdiction to hear the motion to enforce its final judgment, despite the
fact that the judgment ha[s] been appealed,’ but ‘[a] trial court has an affirmative
duty to enforce its judgment.’”) (quoting In re Crow-Billingsley Air Park, Ltd., 98
S.W.3d 178, 179 (Tex. 2003) (orig. proceeding) (per curiam)); Buller, 806 S.W.2d
at 227 (concluding that independent executrix of estate could be ordered to turn
over cash in her possession and owned by the estate as partial satisfaction of the
bank’s judgment against the estate); Hamilton Metals, 597 S.W.3d at 878–79; see
also In re Romero, Gonzalez & Benavides, L.L.P., 293 S.W.3d 662, 664 (Tex.
App.—San Antonio 2009, orig. proceeding) (“Unless the judgment debtor files a
supersedeas bond to delay the enforcement of the final judgment, the trial court has
no discretion to suspend the enforcement of the final judgment pending appeal.”);
Tex. Emp’rs Ins. Ass’n v. Engelke, 790 S.W.2d 93, 95 (Tex. App.—Houston [1st
Dist.] 1990, orig. proceeding) (“A judgment creditor has a statutory right to have
execution issued to enforce a judgment pending appeal, unless and until a valid
supersedeas bond has been filed.”).

We overrule Crystal’s ninth issue.

39
 VII. MOTION TO TRANSFER

In her tenth issue, Crystal argues the trial court abused its discretion “by
failing to hear” Crystal’s post-judgment motion to transfer the final protective
order from the 280th District Court to the court where the petition for divorce was
filed—the 245th District Court. Specifically, Crystal argues that “[t]he trial court’s
refusal to permit a hearing on Crystal’s [m]otion to [t]ransfer [p]rotective [o]rder
was arbitrary, unreasonable, disregarded legal principles, and was done without
any supporting evidence.” Crystal further argues that “[t]he failure to permit a
hearing on the motion to transfer, and to ultimately, transfer the protective order to
the 245th District Court, created a conundrum for the parties.” Specifically, Crystal
argues:

the 245th Judicial District Court’s temporary orders rendition is
completely contrary to the protective order in that it grants sole
managing conservatorship of the children to Crystal and awards her
exclusive use and possession of the marital residence and the
Chevrolet Traverse.

This is an issue of first impression for this Court.

A. APPLICABLE LAW & STANDARD OF REVIEW
If a protective order was rendered . . . while [a suit for dissolution of
marriage] is pending as provided by [§] 85.062, [then] the court that
rendered the order may, on the motion of a party or on the court’s own
motion, transfer the protective order to the court having jurisdiction of
the suit if the court makes the finding prescribed by [§ 85.064(c)].

Tex. Fam. Code Ann. § 85.064(a). A court may transfer a protective order under
§ 85.064(a) if the court finds that the transfer is: (1) in the interest of justice, or (2)
for the safety and convenience of a party or witness. Id. § 85.064(c). The provision
is not mandatory. In re Compton, 117 S.W.3d 548, 550 (Tex. App.—Texarkana
2003, orig. proceeding); see Tex. Fam. Code Ann. § 85.064(a). “A protective order

40
that is transferred is subject to modification by the court that receives the order to
the same extent modification is permitted under Chapter 87 [of the Family Code]
by a court that rendered the order.” See Tex. Fam. Code Ann. § 85.065(c). We
review the trial court’s ruling on a motion to transfer under § 85.064 for an abuse
of discretion. See In re Doe, 19 S.W.3d at 253; In re Salgado, 53 S.W.3d 752, 764
(Tex. App.—El Paso 2001, no pet.) (combined appeal & original proceeding).

B. ANALYSIS

Crystal cites no authority in support of her contention that the trial court was
required to hold a hearing on her motion to transfer, including citation to any local
rules on setting a hearing. Further, there is no requirement in the Family Code that
the trial court conduct a hearing on a motion to transfer a protective order filed
pursuant to § 85.064(a). See Tex. Fam. Code Ann. § 85.064; cf. id. §§ 83.004 (“On
the filing of the motion to vacate, the court shall set a date for hearing the motion
as soon as possible.”), 84.001(a) (“On the filing of an application for a protective
order, the court shall set a date and time for the hearing . . . .”); see also Martinez v.
Flores, 820 S.W.2d 937, 938 (Tex. App.—Corpus Christi–Edinburg 1991, orig.
proceeding) (concluding that the transfer procedures in the Family Code governing
suits affecting the parent-child relationship are the exclusive mechanism for
transferring the case or challenging venue and were designed to supplant the
regular rules dealing with transfer of venue applicable in ordinary civil cases).
Therefore, we reject the argument that the trial court erred by not holding a
hearing.

As to Crystal’s argument that the trial court erred in denying her motion, we
note that the statute provides that it is within the trial court’s discretion to transfer
the protective order. See Tex. Fam. Code Ann. § 85.064; In re Compton, 117
S.W.3d at 550–51 (“By statute, the Smith County court could transfer the

41
protective order action to the Hunt County court, but the transfer is not
mandatory.”). Crystal argues that the trial court abused its discretion because the
“245th Judicial District Court’s temporary orders rendition is completely contrary
to the protective order in that it grants sole managing conservatorship of the
children to Crystal and awards her exclusive use and possession of the marital
residence and the Chevrolet Traverse.” See In re Salgado, 53 S.W.3d at 764–65
(discussing the problematic consequences of this statutory construct which allows
for conflicting orders). Although the docket sheets from the 245th District Court
are part of the record on appeal, the temporary orders referred to by Crystal are not
part of our appellate record. The docket entry for November 19, 2019, states the
245th District Court ruled on temporary orders and appointed Crystal as sole
managing conservator of L.D., S.D., and D.D., appointed Steven as possessory
conservator, and awarded Crystal the exclusive use of the Traverse.18

Here, the record before the protective-order court showed that Crystal made
serious accusations about Steven concerning alcohol and abuse to his family
members and acquaintances, their therapist, and the protective-order court itself,
but offered little substantiation for her repeated claims of serious abuse and alcohol
consumption. Rather, Crystal’s behavior and communications with Steven, as
evidenced in the record, support an inference that these accusations, while perhaps
not totally unfounded or false, were part of Crystal’s escalating attacks and threats
against Steven. Therefore, we cannot conclude that the denial of the motion to
transfer was unreasonable or arbitrary. See Flowers, 407 S.W.3d at 457.

The statutory scheme recognizes that a protective order action and a divorce
proceeding may proceed simultaneously. See Tex. Fam. Code Ann. §§ 85.061 (“If
18
A spouse can request temporary orders for his or her protection, for a child’s safety and
welfare, or for the preservation of property either with or after the filing of a suit for the
dissolution of marriage. See Tex. Fam. Code Ann. §§ 6.502, 6.709, 105.001, 109.001.

42
an application for a protective order is pending, a court may not dismiss the
application or delay a hearing on the application on the grounds that suit for
dissolution of marriage or suit affecting the parent-child relationship is filed after
the date the application was filed.”), 85.062 (providing for the application for a
protective order when a suit for dissolution of marriage or suit affecting the parent-
child relationship is pending); In re Compton, 117 S.W.3d at 551. However, Title
Four of the Family Code does not currently contain a provision resolving conflicts
between a final protective order and a temporary order entered by the divorce
court. See In re Salgado, 53 S.W.3d at 761. While the denial of the motion to
transfer can result in conflicting orders, we are bound by the statutes passed by the
legislature. See In re Corral-Lerma, 451 S.W.3d 385, 387 (Tex. 2014) (orig.
proceeding) (per curiam) (“It is the legislature’s prerogative to strike that balance
and our duty to enforce the statute as we find it.”); In re Salgado, 53 S.W.3d at 762
(“While it does not appear that all of the legislative glitches have been resolved
satisfactorily, we decline the invitation of both Salgado and Nunez to impose our
own solution by legislating from the bench.”). We are, however, mindful that
conflicting orders, without statutory guidance as to which order controls, is a
regrettable and unfair result to the parties and the children affected by these orders,
and causes confusion and delay to the courts. We therefore encourage the
legislature to remedy this conflict.

We overrule Crystal’s tenth issue.

VIII. DUE PROCESS

In her eleventh issue, Crystal argues “[t]he trial court violated principles of
due process and abused its discretion by disallowing Crystal from calling witnesses
in her case in chief.”

We review the trial court’s ruling on the admissibility of evidence for an
43
abuse of discretion. Mega Child Care, Inc. v. Tex. Dep’t of Protective & Regul.
Servs., 29 S.W.3d 303, 308 (Tex. App.—Houston [14th Dist.] 2000, no pet.). We
review de novo a properly preserved claim that a party was deprived of a
constitutional right. Joseph v. Jack, 624 S.W.3d 1, 11 (Tex. App.—Houston [1st
Dist.] 2021, no pet.). However, Crystal did not object to the exclusion of Gauze’s
testimony during the hearing on the protective order or advance any due process
argument. Thus, this argument has been waived. See Tex. R. App. P. 33.1(a); see
also Lee v. City of Houston, No. 14-05-00366-CV, 2006 WL 2254401, at *3 (Tex.
App.—Houston [14th Dist.] Aug. 8, 2006, pet. denied) (mem. op.) (“Courts,
including this one, have held that a party must present due process arguments to
the trial court to pursue them on appeal.”).

Crystal’s eleventh issue is overruled.

IX. CONCLUSION

Having overruled all of Crystal’s issues on appeal, we affirm the trial court’s
judgment.

/s/ Margaret “Meg” Poissant
Justice

Panel consists of Justices Spain, Hassan, and Poissant. (Spain, J., concurring,
joined by Hassan, J.).
Publish — Tex. R. App. 47.2(b).

44