Opinion
No. 09-08-00471-CV
Submitted on July 8, 2009.
Opinion Delivered August 13, 2009.
On Appeal from the 359th District Court, Montgomery County, Texas, Trial Cause No. 08-09-08737-CV.
Before McKEITHEN, C.J., GAULTNEY and KREGER, JJ.
MEMORANDUM OPINION
This is an appeal from the entry of a family violence final protective order. See Tex. Fam. Code Ann. § 85.001(b) (Vernon 2008). In three issues, appellant challenges the legal and factual sufficiency of the evidence supporting the trial court's order. We affirm as reformed.
Appellant's spouse, T.R.B., filed an ex parte application for an emergency protective order along with her older daughter, A.S.B. In the application, T.R.B. and A.S.B. alleged that appellant had "engaged in conduct that constitutes family violence and criminal sexual assault" by sexually assaulting T.R.B.'s minor daughter, N.R.B., and by entering the bedroom of T.R.B.'s adult daughter, A.S.B., while appellant was nude, frightening A.S.B. Attached to the application were the affidavits of A.S.B. and T.R.B. The trial court entered an emergency temporary protective order that prohibited appellant from committing family violence and communicating with A.S.B., N.R.B., and T.R.B., and that required appellant to stay at least 1,000 feet away from A.S.B., N.R.B., and T.R.B. The order also scheduled a hearing to determine whether the order should be made final.
At the hearing, sixteen-year-old N.R.B. testified that on the evening of September 4, 2008, she arrived home at approximately 11:00 p.m. and "went straight to sleep." N.R.B. testified as follows:
I woke up because there was someone in my room and in my bed and their hand was up my shirt. And they were kissing me and they were touching me — I was wearing underwear and a T-shirt and no bra. And they were touching me everywhere and kissing my neck and kissing me on my lips. And I eventually woke up and realized . . . what was really going on. I wasn't dreaming it. . . . I turned around and [appellant] was laying next to me with no clothes on in my bed.
According to N.R.B., appellant touched her breasts and genitals. N.R.B. explained that she was scared and confused, and she left her bedroom. Appellant eventually walked out of N.R.B.'s room with his hand covering his private parts. N.R.B. testified that appellant said "something like: I am sorry, I thought you were your mom. . . . I'm sorry. I don't know how I got in your room." N.R.B. testified that appellant was coherent and spoke in full sentences. N.R.B. went to A.S.B.'s room and told A.S.B. what had happened. At that time, N.R.B. learned that appellant had also been in A.S.B.'s room. N.R.B. testified that she was frightened for her own safety, as well as the safety of the rest of her family.
A.S.B. testified that on the date of the incident, she was residing with appellant, T.R.B., and N.R.B. A.S.B. explained that after she went to bed that night, she awakened and saw appellant standing at the foot of her bed, and she was surprised and confused. According to A.S.B., appellant told her that he was looking for her mother, and he touched her leg and said "something about, okay. Go to sleep." A.S.B. testified that she was startled. A.S.B. explained that N.R.B. subsequently entered A.S.B.'s bedroom, and that N.R.B. was "hysterically crying." N.R.B. related to A.S.B. that appellant had gotten in bed with her while he was nude, and had touched her breasts and genitals and kissed her. A.S.B. also testified that after she and T.R.B. obtained the emergency protective order, she and T.R.B. saw appellant following them into A.S.B.'s father's neighborhood, and that appellant had also called her twice.
N.R.B. testified that after the incident, appellant sent her a text message, in which he apologized and again said he had thought N.R.B. was her mother. N.R.B. told her principal, school counselor, a deputy sheriff, and her mother what had occurred. When asked whether she was fearful of appellant, N.R.B. testified, "I'm not scared he's going to do something to me again, it just scares me to repeat what happened in my head." N.R.B. explained that she wanted appellant to maintain a distance from her, and she did not want him to be a part of her life. N.R.B. testified, "I'm not afraid [appellant will] do anything to me[,] but I don't want it to happen to someone else."
T.R.B. testified that on the night in question, she and appellant had gone to bed at the same time. T.R.B. testified that appellant had no reason to believe that she would have been in N.R.B.'s bedroom. According to T.R.B., appellant left the house at 8:00 a.m. the next morning, but he later returned home and told T.R.B. that he was checking himself into the hospital because he was struggling with drinking. He did not mention what had occurred with N.R.B. T.R.B. testified that at approximately noon, a deputy told her what had happened to N.R.B. T.R.B. testified that the Sunday after appellant had been served with the emergency protective order on the previous Friday, he left a message on her cell phone. In addition, T.R.B. testified that appellant followed her after he had been served with the emergency order, and he also sent numerous text messages to her. T.R.B. explained that she wanted the court to issue a finding of family violence against appellant and to permanently enjoin appellant from coming within 1,000 feet of her and her family.
K.B., the ex-husband of T.R.B. and the father of A.S.B. and N.R.B., testified that since the incident with appellant, T.R.B., A.S.B., and N.R.B. have been living at his residence. K.B. testified that he was familiar with appellant's car, and that he had seen appellant's car pull into the driveway of K.B.'s residence. K.B. also testified that T.R.B. and A.S.B. had told him that they believed appellant was following them into K.B.'s subdivision. At the conclusion of the hearing, appellant took the stand and invoked his Fifth Amendment privilege. The trial court signed a final protective order, in which it found that appellant had committed family violence against N.R.B., A.S.B., and T.R.B., and that it was likely that appellant would commit future family violence against them. Appellant then filed this appeal.
In his first issue, appellant argues that the evidence was legally and factually insufficient to support the trial court's finding that he had committed family violence against A.S.B. In his second issue, appellant asserts that the evidence was legally and factually insufficient to support the trial court's finding that he had committed family violence against T.R.B. Appellant does not challenge the trial court's finding that he committed family violence against N.R.B. In his third issue, appellant contends the evidence was legally and factually insufficient to support the trial court's finding that he would likely commit family violence in the future against A.S.B., T.R.B., and N.R.B. We address appellant's issues together.
When a party attacks the legal sufficiency of an adverse finding on an issue on which he did not have the burden of proof, he must demonstrate that there was no evidence to support the finding. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983). In reviewing a no evidence issue, we view the evidence in a light most favorable to the finding, crediting favorable evidence if a reasonable factfinder could do so, and disregarding contrary evidence unless a reasonable factfinder could not. City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex. 2005). When a party attacks the factual sufficiency of an adverse finding on an issue on which he did not have the burden of proof, he must demonstrate that there was insufficient evidence to support the finding. Raw Hide Oil Gas, Inc. v. Maxus Exploration Co., 766 S.W.2d 264, 275-76 (Tex. App.-Amarillo 1988, writ denied). In reviewing a factual sufficiency issue, we consider and weigh all of the evidence, and we must uphold the finding unless the evidence that supports it is so weak as to be clearly wrong or manifestly unjust. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951).
Section 71.004 defines "family violence" as:
(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. . .;
(2) abuse, as that term is defined by Sections 261.001(1)(C), (E), and (G), by a member of a family or household toward a child of the family or household[.]
. . . .
Tex. Fam. Code Ann. § 71.004 (Vernon 2008). Section 261.001 defines "abuse," in part, as "sexual conduct harmful to a child's mental, emotional, or physical welfare, including . . . indecency with a child under Section 21.11, Penal Code . . .[,]" and "compelling or encouraging the child to engage in sexual conduct. . . ." Tex. Fam. Code Ann. § 261.001(1)(E), (G) (Vernon 2008). Section 85.001 of the Family Code provides as follows, in pertinent part:
(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.
(b) If the court finds that family violence has occurred and that family violence is likely to occur in the future, the court:
(1) shall render a protective order as provided by Section 85.022 applying only to a person found to have committed family violence[.]
. . . .
Tex. Fam. Code Ann. § 85.001(a), (b)(1) (Vernon 2008). Section 85.022(b) of the Family Code provides that a court may prohibit the person found to have committed family violence from, among other things, communicating directly in a threatening or harassing manner with the person protected by an order or a member of the family or household of the protected person, as well as from going to or near the residence of the protected person or a member of the family or household of the protected person. Tex. Fam. Code Ann. § 85.022(b)(1), (2), (3) (Vernon 2008).
In this case, it is undisputed that T.R.B., A.S.B., N.R.B., and appellant were members of the same household. See Tex. Fam. Code Ann. § 71.004 (Vernon 2008) (including within definition of "family violence" a prohibited act by one member of a household against another member of the household). It is also undisputed that T.R.B. and A.S.B. are members of N.R.B.'s family. See Tex. Fam. Code Ann. § 71.003 (Vernon 2008). The trial court heard evidence from N.R.B. that appellant, while nude, entered her bedroom, got into bed with her, kissed her, and fondled her breasts and genitals. However, the trial court did not hear evidence of any conduct by appellant that constituted family violence against T.R.B. or A.S.B. Therefore, viewing the evidence in the light most favorable to the trial court's finding, we conclude there was not more than a scintilla of evidence that appellant committed family violence against T.R.B. and A.S.B. See Tex. Fam. Code Ann. § 71.004; City of Keller, 168 S.W.3d at 813. Accordingly, we sustain the legal sufficiency challenges to the finding of family violence as to T.R.B. and A.S.B. that appellant raises in issues one and two.
With respect to issue three, the trial court heard evidence that appellant had violated the terms of the temporary protective order by contacting A.S.B. and T.R.B., as well as by coming within 1,000 feet of them. The trial court also heard evidence from N.R.B. concerning the incident during which appellant had inappropriate sexual contact with her. Viewing the evidence in the light most favorable to the court's finding that appellant was likely to commit family violence against N.R.B. in the future, we conclude that legally sufficient evidence supported the trial court's finding. See City of Keller, 168 S.W.3d at 807, 813. In addition, considering all of the evidence, we find that the evidence supporting the finding as to N.R.B. is not so weak as to be clearly wrong or manifestly unjust. See Ortiz, 917 S.W.2d at 772; In re King's Estate, 244 S.W.2d at 661.
As previously discussed, section 85.022(b) of the Family Code permits the trial court to enter a final protective order prohibiting appellant from, among other things, communicating directly with a member of the immediate family or household of the protected person, "in a threatening or harassing manner[,]" as well as from going to or near the residence of a member of the immediate family or household of the protected person. See Tex. Fam. Code Ann. § 85.022(b). Thus, the protective order, prohibiting appellant from engaging in such conduct as to members of N.R.B.'s family, may be upheld based upon the trial court's finding that appellant committed family violence against N.R.B. Accordingly, we modify the first sentence of section four of the trial court's final protective order to read as follows: "The Court finds that family violence has been committed by [appellant] against [N.R.B.], a minor child, and it is likely [appellant] will commit family violence against N.R.B. in the future." See Tex. R. App. P. 43.3 (requiring appellate courts to render the judgment the trial court should have rendered unless remand is necessary for further proceedings or the interests of justice require a remand for another trial). The remainder of the final protective order, including provisions one through seven of paragraph four, which prohibit appellant from, among other things, communicating with or coming within 1,000 feet of N.R.B., A.S.B., and T.R.B., or any member of their immediate family or household, remain in place. See id.; Tex. Fam. Code Ann. § 85.022(b). We overrule issue three. As reformed, we affirm the trial court's order.
AFFIRMED AS REFORMED.