Opinion
14-23-00340-CV
12-10-2024
STEVEN SCOTT HARTER, Appellant v. ROSARIO HARTER, Appellee
On Appeal from the 328th District Court Fort Bend County, Texas Trial Court Cause No. 22-DCV-298625
Panel consists of Justices Jewell, Bourliot, and Zimmerer.
MEMORANDUM OPINION
Kevin Jewell Justice
Steven Scott Harter appeals from a protective order granted to Rosario Harter. In his first issue, he contends that the trial court deprived him of due process by refusing to enforce subpoenas. In his second issue, he asserts the trial court abused its discretion by excluding a police officer's body camera video. He challenges the legal and factual sufficiency of the evidence in his third issue, and he argues that the trial court's errors harmed him in his fourth and final issue.
First, we hold that legally and factually sufficient evidence supports the protective order, so we overrule Steven's third issue. Further, we reject his remaining issues because the record does not demonstrate either preservation of error or harm.
We affirm the protective order.
Background
Rosario Harter filed an application for a protective order on November 6, 2022, seeking protection for herself and her 15-year-old son, "Jake," from her long-term boyfriend, Steven Harter, based on Steven's alleged domestic violence. Rosario and Steven were never married, and during the course of their twenty-year relationship, Steven was married to another woman. The trial court granted an ex parte temporary protective order to Rosario and Jake, which was extended until the time of the protective order hearing. At the hearing, the following evidence was presented.
We use the pseudonym "Jake" to protect the minor child's identity.
According to Rosario, early in the morning of September 30, 2022, Steven sexually assaulted her (the "Sexual Assault"). The next evening, Steven and Rosario had an argument during which Steven forcibly restrained Rosario by pressing down on her chest, impeding her ability to breathe (the "Restraint"). She did not contact police or seek medical aid until October 4, when her sister, Raquel, took her to a nearby emergency room because Rosario was in pain and having trouble eating.
After Rosario described the Restraint, hospital staff contacted police. Katy Police Department ("KPD") Officer Soto was dispatched to the hospital to interview Rosario. Both Rosario and Raquel were present when Officer Soto and his colleague, Officer Gore, conducted the interview. Rosario told Officer Soto about the Restraint, but she did not tell the officers about the Sexual Assault. Officer Soto described Rosario as distressed, crying, and sad. She told him that Steven was intoxicated and she tried to prevent him from leaving in his car. They argued, and Steven got on top of her and pressed his arms against her chest, pressing down on her and making it difficult for her to breathe. Rosario twice denied she was choked, and she admitted that she bit and kicked Steven.
Officer Soto testified that Rosario's injuries were consistent with her description of the incident. The officer photographed her injuries, and even though the pictures were taken several days after the incident, Rosario had red markings and bruising on her face, upper torso, chest, and back.
On cross-examination, Officer Soto acknowledged that he thought it was possible Rosario was "on something" or intoxicated when he interviewed her. He also acknowledged that he never interviewed Steven or Jake, who was allegedly present during the assault. Because Officer Soto was not present when the incident occurred, he could not say whether Rosario's injuries could have been from Steven's "defensive measures" to protect himself. After the officer submitted his reports and photographs, the Fort Bend County District Attorney's office accepted charges, and Steven was charged with family violence, impeding breath.
Before the hearing, Steven's counsel issued a subpoena duces tecum to Officer Soto, requiring him to bring to court the body camera video recording of Rosario's interview. Officer Soto did not bring the video with him, which he stated had to be procured through the video's custodian, the KPD records division. Steven, however, possessed a copy of the video because it had been provided to his attorneys as discovery in the ongoing criminal assault case against him. But the copy of the video in Steven's control could be used only for his defense in the criminal proceedings, and no one from the District Attorney's office stated that it could be used in the protective-order proceedings. After considerable discussion on the record, Steven's counsel stated that they were not offering the video into evidence "at this point," and Officer Soto instead watched the video to refresh his recollection before testifying.
Officer Gore testified that Rosario complained of nausea and general pain. He acknowledged that Rosario may have stated she bit and kicked Steven during the incident. He also could not specifically recall seeing any strangulation marks "per se but there was some light bruising around her throat area and her chest." Officer Gore stated that Raquel told the officers that Steven tried to retreat to another room and Rosario followed him. He stated, "It appeared she may have been under the influence of something. I don't know what." But he had no reason not to believe what she was telling them about the Restraint, and he stated her injuries were consistent with the incident she described. He acknowledged that she did not mention that she had been raped, but he stated it is not uncommon for someone not to disclose sexual assaults.
At some point after the officers completed their interview and left, Rosario informed hospital personnel that Steven had raped her. She was sent to another hospital for a rape kit to be collected. KPD Detective Angelica Salinas was assigned to investigate the alleged rape and began investigating the incident around October 3rd or 4th. Detective Salinas testified that the alleged Sexual Assault occurred early in the morning on the same day of the alleged Restraint. She was unaware of the Restraint and did not know about the charges that had been filed related to that incident. Rosario told the detective that, on September 30, she came home around 10:30 p.m., went to Jake's room to say goodnight, then went to sleep. She woke up around 3:30 a.m. with her legs being pulled apart, "forced open by her husband and he sexually assaulted her."
Detective Salinas had not reached out to Steven because she was waiting for the protective order proceedings to be completed; Rosario was scared of Steven and asked the detective to wait before contacting Steven. The detective's investigation into the Sexual Assault was still pending, but she believed Rosario. Rosario told Detective Salinas that Steven sexually assaulted her "on a regular basis" and described other incidents that occurred before the September 30th incident. Rosario seemed afraid and traumatized when the detective interviewed her.
When the detective was questioned about the fact that no semen was found in the rape kit collected from Rosario, she did not consider that unusual, especially because the assault occurred on Friday and Rosario did not go to the doctor until Sunday. When asked why it took Rosario so long to seek medical help, she said Rosario told her she was too scared to say anything until her sister made her go to the doctor because Rosario's chest was sore from an altercation with Steven. The detective was also asked about whether she knew that Rosario had asked for millions of dollars, cars, and a diamond ring to drop the charges against Steven, but Detective Salinas was unaware whether that was true. She also would not have recommended that Rosario travel anywhere alone with Steven after the alleged Sexual Assault.
Rosario's nephew, Julian Luna, was at the scene during the Restraint. From what he saw, Steven "had my aunt pinned down against the bed as in almost like he was choking her and, so, she was being forcibly pinned down by him." Julian testified about the incident:
So, we walked in and I saw both [Jake], Ms. Harter and Mr. Harter. My aunt, Ms. Harter, was very distressed. She looked very frail, too, and, so, the first thing we do is that, I go with my mom [Raquel Spinosa, Rosario's sister] and console [Jake] because he as well was very frail and crying. He was very distraught. So, as me and my mother was consoling [Jake], we hear a door slam and we go in and check and we see that the room had been locked. This room was locked and that room
had Mrs. Harter and Mr. Harter in there. So, what happened, my mother walked in and knocking on the door and, say, hey, please open up. Nobody answers. So, she has to knock again and start yelling. At this point, when she started yelling, my younger cousin, [Jake], was there and went to another entrance via the pool. He runs out and opens that entrance. Gets through there and he unlocks the door. We [sic] he opens the door, that's when my mother and I walked in. That's where I see Mr. Harter pinning down my aunt, Mrs. Harter, down forcibly on the bed. So, he kept doing that until my mom had to go in and step in, physically step in between the both of them and separate them. . . .
So, as Mr. Harter was pinning down my aunt, my mom had to physically go in. So, she put her left foot in between both of them and she had to use her full body force. She used her hands to grab Mr. Harter's hands off and she had to physically pull him off of my aunt and separate him away from my aunt. . . .
After that point, my mom had told Steve, Mr. Harter, to back away, to leave. Just to calm down the whole situation. She was dealing with him. I was dealing with my aunt. I hugged her and said, hey, it's going to be okay. I asked her, are you hurt anywhere?
Rosario told Julian her left ribs hurt and asked him to console Jake. Julian further testified that he had seen Steven become verbally aggressive with both Jake and Rosario in the past, particularly when Steven was drinking. According to Julian, Steven went on "drunk rampages."
Julian acknowledged that he did not call police on September 30, and that, immediately after Raquel separated Steven and Rosario, Steven left the house. He also did not see Steven and Rosario go into the other room because he and his mother were talking to Jake and had their backs turned. He did not know who locked the bedroom door. He acknowledged that Steven did not try to hit Julian, Raquel, or Jake when Raquel pulled him away from Rosario. Steven also did not return to the house after he left. But Raquel stayed for four to five hours afterwards. Julian stated that Rosario did not drink wine or smoke cigarettes, although Rosario herself admitted to both smoking and drinking. He also stated that Steven threatened to take Rosario to court and "bury you and . . . take custody of the kids" if anyone suggested calling the police.
Raquel testified similarly to Julian. She stated that, on September 30, she received a phone call from Jake, and she and her son, Julian, went to Rosario's house after 9 p.m. When they arrived, she let herself and Julian in using her key to the house. Rosario, Steven, and Jake were in the foyer area. She was checking on Jake, and then, she turned around and Steven and Rosario were "gone." She heard a door slam from the master bedroom area, so she knocked on the door, which was locked. She heard a "commotion," and Jake ran around to the back of the house and opened a door from the pool area into the master bedroom, then let Raquel and Julian into the room. She described what happened next:
I saw Mr. Harter holding my sister like this and they were twirling. He was trying to push her to the bed but he missed. So, she fell right beside the bed and then I kept, I am yelling at him. Let her go. Let her go. Let her go. Meanwhile, [Jake] was yelling stop, stop. Julian was yelling stop. . . .
He is still holding her. She is down on the floor and he is still holding her and I am telling him, let her go. Let her go. So, he pulls her up and puts her on the bed and then I'm still telling him, stop, stop. Let her go. . . .
He is not stopping. He is not listening. So, she is finally on the bed and what I think, you know, this is escalating. So, I had to physically get in between the fact that he was going to get on top of her and I don't know. So, at this point I go in between and I hold his hand and I pushed him back and I keep telling him, let go of her. Let go. Let go. So, I finally go in between with my hands and my legs. I push him away and then I turn around and I ask Rosario if she is okay and I told Julian --my son, Julian, is holding her.
According to Raquel, Rosario was asking him to stop and was struggling to breathe. When Raquel asked her if she was hurt, Rosario said her ribs hurt a lot. Raquel asked if she needed to go to the hospital, and Rosario "was just too shocked and too distressed" to answer. Steven left the house, but when Raquel confronted him at his truck, he said that he was "going to take [Rosario] to court and the kids will be my witnesses." He threatened to "take the kids away." Raquel testified that Steven was a well-known alcoholic, with a "volatile" temperament. She encouraged Rosario to contact the police, but Rosario was "protecting" Steven because Rosario was very "invested" in the relationship with him. Raquel testified that Steven had been abusing Rosario for years.
Raquel stayed with Rosario for several hours after the Restraint. She spoke with Rosario the next day, and Raquel said that Rosario "couldn't talk. She couldn't move." Rosario was "in the bed. She was just down. Very sad. She didn't want to eat." Raquel saw bruises on Rosario's arms. On Sunday morning, Rosario finally agreed to go to the hospital. After they arrived and spoke with hospital staff, police officers came and Rosario told them about the Restraint. According to Raquel, Rosario also told the officers about the Sexual Assault. Raquel testified that Steven always threatened to take the kids away, claiming he was rich and had "connections."
Raquel explained that Rosario changed her last name to Harter. According to Raquel, Rosario and Steven were in a twenty-year relationship, but she agreed that it was fair to describe Rosario as Steven's mistress. Raquel claimed that only Rosario was committed to their relationship and that Steven was "promiscuous." Raquel said she would be surprised to learn that the officers to whom Rosario spoke at the hospital stated Rosario did not report the Sexual Assault because Rosario "did complain about it."
Rosario testified that she had been in a relationship with Steven for the last twenty years. They share a son, Jake; and Steven helped her raise her other son, Benjamin, who was not Steven's biological child. Throughout the course of their relationship, Rosario knew that Steven had a wife, but he promised to marry her on numerous occasions.
Rosario testified that she fears Steven and "always ha[s] been in fear of him." She described several past assaults: one occurred when she was pregnant with Jake, and another occurred when police were called in February 2021. Pictures of her with bruises were admitted. She said some of the bruises occurred after police left when Steven pushed her, and she fell down; and some were caused when he tried to take the phone from her when she was calling 911. No charges were filed or arrests made following that incident.
Regarding the events of September 30, 2022, Rosario stated that Steven sexually assaulted her at around 3 a.m. She did not consent, and she told him to stop several times, but he did not stop. The next morning, she got up and went to a meeting at her son's school: "After 20 years of being dealing with not only him but other people around because of the relationship I have with him, I became very resilient." Rosario acknowledged that she did not tell the officers at the hospital about the Sexual Assault because she was embarrassed.
After the Restraint and the Sexual Assault, she and Steven had two trips planned together: one to Del Rio, where Steven had property, and another to Ohio. She went with Steven to Del Rio even though it was a remote location where "[a]nyone can be killed in that ranch without knowing where no one being left." Jake came with them, which is why she went. She acknowledged that Steven did not harm her while they were in Del Rio. She did not go on the planned trip to Ohio, but Jake went with Steven to visit Steven's alma mater there.
Before Steven's counsel began cross-examining Rosario, the record reflects that counsel raised the issue of Jake testifying and informed the court that a subpoena duces tecum was issued to Rosario instructing her to bring Jake to a prior setting, but Rosario had not done so. Additionally, Steven's counsel informed the court that she had applied for a subpoena to issue directly to Jake, but "[t]hat request has not been processed by the clerk because they were seeking guidance from the Court on how to proceed in terms of issuing an application for a subpoena to a child." When asked by the court for authority supporting the position that a protected child and victim of family violence can be compelled to testify in court, counsel responded that "the Constitution states that Mr. Harter has the right to due process." Counsel urged that nothing prohibited Jake from testifying, because "children testify all the time," and his testimony was necessary to "rebut the allegation against Mr. Harter." The judge responded that she would take the matter under advisement and look for authority herself. Counsel concluded by saying that she would like to have Jake potentially testify during Steven's case and was looking for "some clarity" on the issue.
Counsel cross-examined Rosario, focusing on Rosario's purported financial motivations for seeking a protective order and on whether Rosario was angry with Steven because he had recently begun seeing another woman. Rosario denied that anger and finances motivated her application, and she maintained that Steven had been controlling and abusive throughout their relationship. Rosario acknowledged that Steven had never physically abused Jake. She also agreed that Jake had a relationship with Steven's children from his marriage, although the "family dynamic" was difficult.
Counsel also cross-examined Rosario regarding whether she often agreed to have sex with Steven in exchange for money or other financial gains. Rosario responded that Steven asked for sex in exchange for things. Rosario also described a physical altercation she had with Steven in December 2021 when she tried to slap him and he pushed her away. Rosario was angry with Steven because she discovered that he had an extra-marital relationship with another woman, Tatyana. Counsel questioned Rosario about whether she instigated altercations with Steven, and Rosario acknowledged that Steven often tried to "run away" from fights with her and that she had slapped Steven when she got upset with him. She also stated that she often tried to keep him from "running away" because he was drunk.
Specifically regarding the Restraint, Rosario agreed that she took Steven's keys into the bedroom and Steven followed her in the room because he wanted the keys. Rosario stated that she hid the keys in the bedroom closet because Steven was drunk. She stated that she was blocking him from going into the closet to get the keys when Steven pushed her away, then grabbed her and pinned her to the bed. Rosario also agreed that once Steven retrieved his keys and a backpack, he left the house. She acknowledged that she bit Steven because he was obstructing her breathing, and a photograph of a small bruise on Steven's arm was admitted into evidence. However, Rosario denied initiating physical fights with Steven. Rosario also acknowledged recording phone calls with Steven without his consent, and one such recording was admitted. Rosario agreed that during one phone call, Steven threatened to take her to court, but he made no physical threats to her.
Rosario's attorney testified regarding his fees, and then rested. Steven's counsel moved for a directed verdict, arguing that Rosario had not met her burden to show that family violence had occurred and that it is likely to occur again in the future. The trial court denied the motion. Steven's witnesses were sworn to reappear for the next hearing date.
Steven presented several witnesses during his case-in-chief, none of whom were present during the Restraint or the Sexual Assault. These witnesses testified to Steven's good character. None of them had seen any physical violence between Steven and Rosario. The theme of Steven's case was that Rosario instigated physical fights with Steven, and Steven defended himself. According to Steven, Rosario filed the protective order application out of anger and jealousy because Steven had a new girlfriend. Counsel summarized Steven's defense as follows: "[Rosario] is seeking a protective order in an attempt to deprive [Steven] of access to his child, first, and secondly, to punish him for leaving her and having a relationship with a new girlfriend. . . ." Steven's counsel rested without calling Jake as a witness or otherwise referring to the prior due process arguments concerning Jake's testimony.
After hearing all the evidence, the trial court denied the protective order as to Jake, but granted it as to Rosario, finding that family violence had occurred in the past and was likely to occur in the future. Steven's visitation with Jake was to be supervised, pending separate proceedings regarding the parent-child relationship. Although Rosario sought a lifetime protective order, the trial court granted it for a two-year period. The trial court also ordered Steven to pay Rosario's attorney's fees incurred in connection with the protective order.
This appeal followed.
Analysis
A. Sufficiency of the Evidence
In his third issue, Steven contends that the evidence is legally and factually insufficient to support the order. Because it would afford him the greatest relief if successful, we address his sufficiency issues first. E.g., Bradleys' Elec., Inc. v. Cigna Lloyds Ins. Co., 995 S.W.2d 675, 677 (Tex. 1999).
Steven argues the evidence is legally and factually insufficient to support the protective order because: (1) Steven's actions "were merely defensive measures, which do not constitute family violence" as defined by the Family Code; and (2) the record shows that family violence is not likely to occur in the future.
1. Standard of review and governing law
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).
When reviewing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the judgment and indulge every reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). We credit favorable evidence if a reasonable fact finder could and disregard contrary evidence unless a reasonable fact finder could not. Id. at 807, 827; Jacquot v. Coker, No. 14-20-00123-CV, 2022 WL 1180138, at *6 (Tex. App.-Houston [14th Dist.] Apr. 21, 2022, pet. denied) (mem. op.) If there is more than a scintilla of evidence to support the judgment, it must be upheld. Jacquot, 2022 WL 1180138, at *6. More than a scintilla of evidence exists when the evidence supporting the finding rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Id.
To review a factual-sufficiency challenge, we examine the entire record, considering all the evidence both in favor of and contrary to the challenged findings. Id. We will overturn a finding only when it is so contrary to the overwhelming weight of the evidence so as to be clearly wrong and unjust. Id. The fact finder is the sole judge of the weight and credibility of the witnesses' testimony; we may not substitute our judgment for that of the trial court simply because we might reach a different conclusion. Id.
A court shall render a protective order if the court finds that family violence has occurred and is likely to occur in the future. Tex. Fam. Code § 81.001. "Family violence" includes "an act by a member of a family . . . against another member of the family . . . that is intended to result in physical harm, bodily injury, assault, or 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). "Family" includes "individuals who are the parents of the same child, without regard to marriage." Id. § 71.003.
2. Application
Steven first argues that the record shows that family violence did not occur because his actions were merely defensive measures. In support of this issue, however, Steven relies heavily on his counsel's arguments in the trial court. Attorney argument is not evidence. See Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997) (per curiam) (providing that, generally, counsel must be under oath for statements to be considered evidence); Fallon v. MD Anderson Physicians Network, 586 S.W.3d 58, 75 (Tex. App.-Houston [1st Dist.] 2019, pet. denied) ("Motions, arguments of counsel, and bare assertions are not evidence.").
Rosario, Julian, and Raquel all testified similarly about what occurred during the Restraint. And Officer Soto testified that Rosario told him about this incident, during which Steven pressed his arm against her chest and impeded her breath. The officer photographed Rosario's injuries and described them as "consistent" with her account of the incident. Rosario had "grab marks" on her arms, which was more consistent than Rosario's version of events than if Steven were trying to defend himself. And Rosario told the officers there was a significant difference in size between herself and Steven. Raquel testified that Steven had been a wrestler and played college football. She described Steven as "huge," and Rosario as "petite."
In addition, Rosario provided details regarding several instances when Steven sexually assaulted her. She told Detective Salinas that Steven had raped her and that there were other incidents of sexual assault that happened on a regular basis. Rosario also testified that Steven had sexually assaulted her several times throughout the course of their relationship.
The sworn testimony of an applicant alone may be sufficient for a trial court to grant a protective order. See Jacquot, 2022 WL 1180138, at *7 (citing Amir-Sharif v. Hawkins, 246 S.W.3d 267, 272 (Tex. App.-Dallas 2007, pet. dism'd w.o.j.)). Further, the trial court may credit the applicant's testimony over the testimony of other witnesses. St. Germain v. St. Germain, No. 14-14-00341-CV, 2015 WL 4930588, at *4 (Tex. App.-Houston [14th Dist.] Aug. 18, 2015, no pet.) (mem. op.). Here, Rosario's testimony, standing alone, provides legally and factually sufficient evidence that Steven committed family violence and that his actions toward Rosario were not defensive in nature. E.g., Jacquot, 2022 WL 1180138, at *7. But in today's case, the trial court was not limited to Rosario's testimony because other witnesses also testified to Steven's history of family violence. Whether the witnesses were credible was an issue for the trial court, and it is not for this court to disturb the lower court's credibility determinations. See Jacquot, 2022 WL 1180138, at *6; Amir-Sharif, 246 S.W.3d at 272. In short, the record adequately supports the trial court's implicit finding that Steven was not acting in self-defense.
Regarding Steven's complaint that there is insufficient evidence that family violence will occur again in the future, it has been said that, in the context of protective orders, past is often prologue. See, e.g., In re Epperson, 213 S.W.3d 541, 543-44 (Tex. App.-Texarkana 2007, no pet.) ("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."); see also Coffman v. Melton, 448 S.W.3d 68, 74-75 (Tex. App.-Houston [14th Dist.] 2014, pet. denied) (quoting Epperson and explaining that there was evidence that the respondent had twice violated the original protective order and the applicant testified regarding her fears that the respondent would harm her in the future or kidnap their children). Rosario testified that Steven had physically and sexually abused her throughout their twenty-year relationship. Rosario told Officer Soto that she was worried about her safety because Steven could "easily" kill her. The officer testified that he believed that Rosario was afraid for her safety. According to Detective Salinas, Rosario was traumatized and afraid of Steven. Detective Salinas believed that, based on the history described by Rosario, there was a likelihood that family violence would occur in the future. Both Julian and Raquel testified that they were fearful for Rosario's life. Consistently, Rosario stated that, based on Steven's history of violence towards her, she believed he would be violent against her again in the future. Rosario additionally provided evidence that Steven violated the ex parte protective order against him by communicating directly with both her and Jake. All of this evidence supports the trial court's finding that Steven is likely to commit family violence in the future.
Viewing the evidence in the light most favorable to the judgment, we conclude that more than a scintilla of evidence exists to support the trial court's findings that family violence occurred and is likely to occur again in the future. E.g., Jacquot, 2022 WL 1180138, at *7; St. Germain, 2015 WL 4930588, at *3-4; Coffman, 448 S.W.3d at 74. Based on all the evidence before the trial court, its findings are not so contrary to the overwhelming weight of the evidence so as to be clearly wrong and unjust. Jacquot, 2022 WL 1180138, at *7; St. Germain, 2015 WL 4930588, at *3-4; Coffman, 448 S.W.3d at 74. Accordingly, we conclude the evidence is both legally and factually sufficient to support the trial court's findings that family violence occurred and is likely to occur again in the future.
We overrule Steven's third issue.
B. Due Process Complaints
In his first issue, Steven contends the trial court deprived him of due process by refusing to enforce subpoenas. Specifically, Steven complains that his "inability to enforce the subpoenas and subpoenas duces tecum served on Rosario Harter, the parties' child, and Officer Soto deprived him of his right to call witnesses and be heard." In this issue, Steven also contends that the trial court erred by refusing to issue a subpoena directly to Jake.
1. Standard of review and applicable law
We generally review complaints that the trial court improperly refused to enforce a subpoena under an abuse of discretion standard. See Ortega v. State, 472 S.W.3d 779, 790 (Tex. App.-Houston [14th Dist.] 2015, no pet.); Torres v. State, 424 S.W.3d 245, 261 (Tex. App.-Houston [14th Dist.] 2014, pet. ref'd). Steven, however, casts his subpoena arguments as impacting his fundamental due process right to compel witness testimony. We review de novo a claim that a party was deprived of a constitutional right because it presents an issue of law. See State v. Hodges, 92 S.W.3d 489, 494 (Tex. 2002); Joseph v. Jack, 624 S.W.3d 1, 11 (Tex. App.-Houston [1st Dist.] 2021, no pet.) (citing Scally v. Tex. State Bd. of Med. Exam'rs, 351 S.W.3d 434, 446 (Tex. App.-Austin 2011, pet. denied)). The United States and Texas Constitutions prohibit the deprivation of life, liberty, and property from any person without due process of law. U.S. Const. amend. XIV, § 1; Tex. Const. art. 1, § 19. The right to be heard is a fundamental concept of due process, and an opportunity to be heard must be granted at a meaningful time and in a meaningful manner. Joseph, 624 S.W.3d at 11-12 (citing Fuentes v. Shevin, 407 U.S. 67, 80 (1972)). The degree of process that is due in any given situation is measured by a flexible standard that depends on the practical requirements of the circumstances. Matthews v. Eldridge, 424 U.S. 319, 334 (1976). Nonetheless, even complaints involving constitutional error require preservation and may be waived if not properly preserved in the trial court. Accord In re L.M.I., 119 S.W.3d 707, 711 (Tex. 2003); see Tex. R. App. P. 33.1.
Whether the applicable standard of review for Steven's subpoena complaints is de novo or abuse of discretion is not material to the outcome of this appeal.
A subpoena must command the person to whom it is directed to do either or both of the following:
(a)attend and give testimony at a deposition, hearing or trial; [or]
(b)produce and permit inspection and copying of designated documents or tangible things in the possession, custody or control of that person.Tex. R. Civ. P. 176.2.
2. Subpoena directed to Officer Soto
We first address the portion of Steven's issue regarding the subpoena directing Officer Soto to bring his body camera video to the hearing.
As a prerequisite to presenting a complaint on appeal for appellate review, the record must show that (1) the complaint was made to the trial court by a timely request, objection, or motion that stated the grounds for the ruling sought with sufficient specificity to make the trial court aware of the complaint unless the specific grounds were apparent from the context, and (2) the trial court ruled on the request, objection, or motion either expressly or implicitly or refused to rule and the complaining party objected to the refusal. See Tex. R. App. P. 33.1(a). An objection is timely if it is asserted at the earliest opportunity or interposed at a point in the proceedings when the trial court has an opportunity to cure any alleged error. Gabel v. Gabel-Koehne, 649 S.W.3d 590, 596 (Tex. App.-Houston [1st Dist.] 2022, no pet.).
Steven never mentioned or referred to due process as a ground for objection during the discussion of Officer Soto's body camera video. Both the United States Supreme Court and the Supreme Court of Texas have held that constitutional error was waived in comparable circumstances. See Webb v. Webb, 451 U.S. 493, 496-97 (1981) (holding that constitutional error was waived, even though petitioner repeatedly used the phrase "full faith and credit," because petitioner did not cite to the federal constitution or to any cases relying on the full faith and credit clause of the constitution); In re L.M.I., 119 S.W.3d at 710-11 (holding that due process argument, which was not raised in the trial court, was not preserved for review). We conclude that Steven did not apprise the trial court of a due process complaint regarding this video or request the court to enforce this subpoena on due process grounds. E.g., In re L.M.I., 119 S.W.3d at 711; Fontenot v. Fontenot, 667 S.W.3d 894, 911-12 (Tex. App.-Houston [14th Dist.] 2023, no pet.); Joseph v. Joseph, No. 14-20-00855-CV, 2022 WL 3205099, at *3 (Tex. App.-Houston [14th Dist.] Aug. 9, 2022, no pet.) (mem. op.); Santos v. Comm'n for Lawyer Discipline, 140 S.W.3d 397, 404-05 (Tex. App.-Houston [14th Dist.] 2004, no pet.). Nor did Steven mention the subpoena duces tecum issued to Officer Soto in his motion for new trial.
In any event, any procedural due process deprivation requires a showing of harm to be reversible. See Tex. R. App. P. 44.1(a); In re D.W., 498 S.W.3d 100, 118 (Tex. App.-Houston [1st Dist.] 2016, no pet.). Presuming without deciding that the trial court erred in the manner suggested by Steven, he has not demonstrated that he was prejudiced by Officer Soto's failure to bring the video to the hearing. Steven's attorneys stated that they were not seeking to admit the video, which is understandable given the constraints on its use by Steven as part of the criminal proceeding. A copy of the video is not in our record. Moreover, it is undisputed that Steven had a copy of the video, Officer Soto watched the video to refresh his recollection of his interview of Rosario, and Steven cross-examined Officer Soto after he reviewed the video. There is no contention that Officer Soto's live testimony was inconsistent with the video.
Accordingly, we overrule this portion of Steven's first issue.
3. Subpoenas compelling Jake's appearance at the hearing
As to the subpoenas regarding Jake, Steven presents a two-pronged argument: (1) the trial court refused to enforce a subpoena duces tecum directing Rosario to produce the child witness at trial; and (2) the trial court refused to allow the issuance of a subpoena to the child directly.
Under the Rules of Evidence, children who "possess sufficient intellect to relate transactions with respect to which they are interrogated" are "persons" who may testify in civil proceedings. See Tex. R. Evid. 601(a). Other than the general rules applicable to subpoenas and Fort Bend County local rules (discussed below), the parties do not rely on any other authority governing compelling child testimony in a protective order proceeding.
Statutes applicable in criminal and juvenile proceedings directly address the issue. See Tex. Code Crim. Proc. art. 24.011(a) (providing for testimony of a child witness by "a subpoena directing a person having custody, care, or control of the child to produce the child in court"); Tex. Fam. Code § 53.06.
At Steven's request, the Fort Bend County District Clerk issued a subpoena duces tecum to Rosario compelling her to bring Jake to court at 8:30 a.m. on December 12, 2022. Presuming for argument's sake that a subpoena duces tecum- that is, a command to produce documents or tangible things in a person's possession, custody, or control under rule 176.2(b)-was a proper vehicle to compel Rosario to bring a person, Jake, to court to testify, Rosario's failure to obey this subpoena could be deemed contempt, punishable by fine, confinement, or both. See Tex. R. Civ. P. 176.8. Further, a witness who has been subpoenaed and fails to appear for trial may be compelled to appear through a writ of attachment. See Tex. R. Civ. P. 176.8; Guerrero v. Cardenas, No. 01-21-00045-CV, 2022 WL 210152, at *11 (Tex. App.- Houston [1st Dist.] Jan. 25, 2022, pet. denied) (mem. op.).
The protective order hearing did not commence on December 12, 2002, but rather began on March 6, 2023.
We do not have a reporter's record of the December 12, 2022 hearing showing what events transpired or whether Rosario appeared with Jake at that time. Thus, Steven has not demonstrated that Rosario failed to comply with the subpoena directing her to bring Jake to court on December 12. Moreover, it is unknown from our record whether Rosario was sworn to return for any other hearing date, nor does our record contain any other subpoenas compelling Rosario to bring Jake to court for the protective order hearing beginning March 6, 2023. Thus, our record does not show that Rosario was under a command to bring Jake to the protective order hearing when it began on March 6. This point was not lost on Rosario's counsel or the trial judge, both of whom recalled, respectively, the following during the hearing on Steven's motion for new trial:
Judge, I will go back through the chronological order. We don't dispute there was a subpoena duces tecum issued on December 7th of 2022, Judge. That was served on Ms. Harter. The issue is, Judge, that subpoena required Ms. Harter to appear on a date that was later reset. There was no swearing Ms. Harter to return with the child at any point in time thereafter, Judge. So, that subpoena is no longer in effect and, therefore, it was the Respondent's duty to issue a new subpoena to Ms. Harter, requiring her to bring that child to a date in which this protective order commenced and later have her sworn to reappear with that child which never happened, Judge. . . .
The trial court agreed with Rosario's counsel, stating that nothing in its records indicated that Rosario was sworn to reappear such that she would "still be[] under the power of the subpoena duces tecum that she was served with on December 9th of 2022." Therefore, we conclude that the record does not reflect that Rosario failed to comply with the subpoena duces tecum.
Separately, we do not see in the record that Steven followed the available procedures to compel Rosario's compliance with the subpoena duces tecum, such as by moving to hold Rosario in contempt. See Tex. R. Civ. P. 176.8. Generally, a party who fails to take advantage of available legal processes cannot demonstrate a due process violation. See Guerrero, 2022 WL 210152, at *11; see also Corley v. Corley, 546 S.W.2d 884, 887 (Tex. App.-Fort Worth 1977, no writ) (overruling due process complaint regarding wife's failure to comply with subpoena duces tecum because husband "failed to urge, object or move for any action or ruling from the Court" relative to such failure, thus waiving any error); accord Vitol, Inc. v. Harris Cnty. Appraisal Dist., 529 S.W.3d 159, 175 n.12 (Tex. App.-Houston [14th Dist.] 2017, no pet.) (explaining that taxpayer who does not avail itself of procedures available cannot demonstrate a due process violation); City of San Antonio ex rel City Pub. Serv. Bd. v. Bastrop Cent. Appraisal Dist., 275 S.W.3d 919, 925-26 (Tex. App.-San Antonio 2009, pet. dism'd) ("There is no due-process violation where property owners chose not to take advantage of the opportunities available to them.").
Steven also complains that the trial court refused to issue a subpoena to Jake directly. Fort Bend County judges have adopted a local rule applicable in family cases and establishing procedures for securing a child's testimony:
In all cases in which the court deems testimony of a child to be necessary or required by statute, the attorney wishing to have the child interviewed shall arrange a specific time through the court coordinator
for the court to interview the child if the motion is granted. No party is to bring a child to the courthouse to testify without prior arrangement pursuant to this rule, unless the child's attendance is required by court order including a writ of habeas corpus or attachment. The attorney who is responsible for the child's attendance at court shall immediately notify the court coordinator of the child's presence in the courthouse. The child shall not be brought into the courtroom without the express consent of the judge or associate judge.Loc. Rules of the Dist. Cts. of Fort Bend Cnty., Tex., Fam. Cases, R. 4.4, "Interview of Child/Child's Testimony," available at https://topics.txcourts.gov/LocalRules Public/PreviewAttachment/545 (last visited Oct. 28, 2025).
District courts may make and amend rules governing practice that are not inconsistent with the Rules of Civil Procedure. Tex.R.Civ.P. 3a(a), (b). These rules are published on the Office of Court Administration's website and are, thus, effective. Tex.R.Civ.P. 3a(c).
The record does not reveal that Steven filed a motion requesting the court to compel Jake's attendance or an order denying such a motion. According to Steven, he filed a subpoena application for Jake, but was told in an email by a representative of the clerk's office that the judge would not approve it. He argues that this email shows that the trial court intervened and refused his request for a subpoena to be served on Jake. A copy of the email in question appears in our record, but it does not state that the court refused to allow a subpoena to issue. It states that the clerk's office was awaiting approval from the court to issue service papers to a minor.
Steven also argues that the trial court refused his request to issue a subpoena to Jake during the third day of the protective order hearing. A review of the reporter's record shows that when Steven brought this issue to the trial court's attention during the hearing and urged that Steven had a due process right to question Jake, the court requested case authority and responded that it would take the matter under advisement. As Steven acknowledges in his briefing, however, the trial court never ruled on his due process complaint and never denied a motion or request seeking to compel Jake's appearance. Steven did not make any further reference to the subpoena for Jake, nor did he attempt to call Jake as a witness during the hearing. Although our record indicates the court may have been reluctant to subpoena Jake, who at the time of the hearing was protected by the ex parte temporary protective order issued to Rosario against Steven, the record does not show that the court ever ruled or refused to rule on Steven's request.
The trial court stated as much during the hearing on Steven's motion for new trial:
I do recall an exchange but it was so more about having this young child come to testify about a domestic violence incident, that the Court was not necessarily on board with it being in the child's best interest but having said that, docket entries are made every time we come to court and especially if there was a denial. I am still looking. I am trying to find anything that indicates that there was a motion made and then there was a denial. Trial commenced March 6th and there was a two-week period where an application could have been -- I'm sorry. I am going through all docket entries and everything that has been filed. . . . [T]he Court has reviewed the court's file once again and finds no motion was made, at least not a written motion for a subpoena to be issued to the child through his or her guardian. The Court has been called, the case has been called to order and we are on the record and after the argument has been made by counsel, there is no record provided today that would support that there was an oral motion and a denial by this Court and the record does not reflect that there has been a docket entry. There is no docket entry or any other indication in the record that such an oral motion was made and denial by this Court. . . .The trial judge also noted that she was "surprised" when Steven "rested without even arguing if the child would come up."
Under our Rules of Appellate Procedure, even constitutional complaints must be presented to the trial court by a timely request, motion, or objection stating the specific grounds therefor, and the complaining party must obtain a ruling. Tex.R.App.P. 33.1(a); In re L.M.I., 119 S.W.3d at 711. Based on the present record, we are compelled to conclude that Steven did not preserve his due process complaints regarding his application for a subpoena to be issued directly to Jake. See Guerrero, 2022 WL 210152, at *11; Corley, 546 S.W.2d at 887.
For the reasons explained, we overrule Steven's first issue.
C. Body Camera Video
In his second issue, Steven contends the trial court abused its discretion by refusing to admit Officer Soto's body camera video.
We review the trial court's exclusion of evidence for an abuse of discretion. Caffe Ribs, Inc. v. State, 487 S.W.3d 137, 142 (Tex. 2016); JLG Trucking, LLC v. Garza, 466 S.W.3d 157, 161 (Tex. 2015). A trial court abuses its discretion when it acts without regard for any guiding rules or principles. Caffe Ribs, 487 S.W.3d at 142.
When Steven initially proffered this exhibit for admission, the trial court expressed concerns about whether the copy that Steven had been provided by the District Attorney's office could be admitted in the protective order proceedings:
[Steven's counsel]: Your Honor, at this point we will offer the video body cam that Officer Soto had. It's about 45, 50 minute exhibit. It's on the thumb drive and we would offer that in evidence in this hearing.
[Rosario's counsel]: Judge, I have no issue with the admission of the document. I was able to review it at our lunch break or shortly before that, Judge, and it is the footage from Officer Soto's body cam with the investigation of my client with regard to the assault family violence charge.
THE COURT: Is someone here from the ADA office because it was my understanding that that video was for limited purposes which is discovery in a criminal case and if we are going to use it in a different proceeding, I need someone from the DA's office to say there is nothing in that video that's deemed confidential and it is fine to use it in this proceeding.
[Steven's counsel]: May I conditionally offer it under seal and then conditionally wait until we get some sign off by them, by the DA's Office? As the criminal attorney, I would be okay but it's relevant to this proceeding.
THE COURT: But would the ADA be okay. I need somebody from their office. . . . I am assuming you-all received it during discovery; is that right?
[Steven's counsel]: Yes.
THE COURT: When you received it, did it not have with it a disclaimer that indicated it was going to be used?
[Steven's counsel]: Yes. It's general for my office on his behalf to render all my effective assistance of counsel on a criminal case.
THE COURT: Exactly. That's why I want to make sure because I know -- it's my understanding that to use it for any purpose other than what it was allowed to be used for could possibly carry with it ramifications for use of it. . . .
Based on these concerns, Steven's counsel withdrew its proffer of this video:
[Steven's counsel]: Right now can we -- we won't offer it at this point. Officer Soto did review it. So, I am going to go over some areas now that he has been sufficiently refreshed, in areas that may be that he kind of either hesitated or more cautious. . . .
[Steven's counsel]: Your Honor, and if it does become necessary for us to admit it -- for example, if we are satisfied with the testimony, we may feel like there is no need to admit it but if we can just kind of assess how that plays out.(Emphasis added.)
To preserve error concerning the exclusion of evidence, the complaining party must actually offer the evidence and secure an adverse ruling from the court. Collins v. D.R. Horton-Tex. Ltd., 574 S.W.3d 39, 50 (Tex. App.-Houston [14th Dist.] 2018, pet. denied). Steven did not offer the video into evidence at any other point during the hearing, and he quickly withdrew the offer. Steven cannot withdraw his proffer of this video and then complain on appeal that the trial court excluded this evidence. See Delgado v. State, No. 13-01-00386-CR, 2003 WL 22023466, at *15 (Tex. App.-Corpus Christi Aug. 28, 2003, no pet.) (mem. op., not designated for publication) (appellate complaint that trial court erroneously excluded exhibit was waived because proponent withdrew the exhibit during trial); see also In re G.S.H., 627 S.W.3d 288, 301 (Tex. 2021) ("The invited-error doctrine, like estoppel, may operate when a party has taken some previous action or position that is inconsistent with its current position."); Tittizer v. Union Gas Corp., 171 S.W.3d 857, 862 (Tex. 2005) (explaining that, under the invited-error doctrine, a party is estopped from challenging a trial court's ruling on appeal if the complaining party requested the action taken by the trial court).
We overrule Steven's second issue.
Conclusion
We have overruled Steven's first three issues. Except as discussed above, we need not consider Steven's fourth and final issue, in which he contends the trial court's errors harmed him, because our rulings on these issues renders it moot. See Tex. R. App. P. 47.1. Accordingly, we affirm the protective order.