Opinion
01-21-00124-CV
01-03-2023
JAMES YEUNG, Appellant v. JOCELYN YEUNG, Appellee
On Appeal from the 280th District Court Harris County, Texas Trial Court Case No. 2020-48052
Panel consists of Justices Kelly, Rivas-Molloy, and Guerra.
MEMORANDUM OPINION
Amparo Guerra Justice
Jocelyn Yeung sought a permanent protective order against her husband James Yeung. After a hearing, the trial court granted the protective order under Code of Criminal Procedure Chapter 7A, based on its finding that there were "reasonable grounds to believe [Jocelyn] is the victim of sexual assault or sexual abuse." In two issues, James contends (1) the trial court misinterpreted Chapter 7A, and (2) the evidence is legally and factually insufficient under a correct interpretation of the statute. We affirm.
Chapter 7A was repealed by the Texas Legislature in the 2019 legislative session, and its provisions were recodified without substantive amendment in Chapter 7B, which took effect on January 1, 2021. The provisions of Chapter 7A were in effect at the hearing on Jocelyn's application and when the trial court orally granted the protective order against James. Accordingly, we reference Chapter 7A in this opinion, even though the trial court did not issue the written protective order until January 21, 2021, after Chapter 7B's effective date. Even if Chapter 7B applied, that statute "is intended as a codification only, and no substantive change in the law is intended." See Act of May 21, 2019, 86th Leg., R.S., ch. 469, § 4.01, 2019 Tex. Gen. Laws 1065, 1152 ("This Act is intended as a codification only, and no substantive change in the law is intended by this Act."). Accordingly, James's statutory construction and evidentiary sufficiency arguments would apply equally to Chapter 7B.
The Texas Association Against Sexual Assault filed an amicus brief opposing James's interpretation of the protective order statute.
Background
Jocelyn applied for a protective order against James under both the Texas Code of Criminal Procedure and the Texas Family Code, alleging that he sexually assaulted her and committed acts of family violence. See Tex. Code Crim. Proc. arts. 7A.01-.07 (protective order for victims of sexual assault); Tex. Fam. Code §§ 85.001-.065 (protective order for victims of family violence).
At the September 1, 2020 hearing on Jocelyn's application, she and James were still married but involved in divorce proceedings. She testified about three alleged sexual assaults. She testified that, in April 2017, only three weeks after she suffered a second-degree episiotomy and internal vaginal tearing due to childbirth, James forcibly removed her clothes and inserted his penis into her vagina, causing her to cry out in pain. On a second occasion, in November 2017, James sexually assaulted her while they were visiting her father. The third sexual assault occurred in December 2017, while they were out of town for her sister's wedding. The second and third incidents were similar in that Jocelyn woke up, late at night, to James's fingers inside her vagina.
Jocelyn confronted James after each incident and argued regularly with him about them. She made audio recordings of two of these arguments, which the trial court admitted into evidence at the hearing. Jocelyn also introduced evidence of her Facebook messages discussing one of the sexual assaults.
Jocelyn reported the alleged incidents to various law enforcement entities more than two years later, in July 2020, and the Lewisville Police Department contacted James. James denied Jocelyn's allegations against him, and he was not charged with or convicted of any sexual offense against Jocelyn. Although the audio recordings captured James apologizing to Jocelyn, he explained this was because he wanted to keep the peace and Jocelyn had been verbally and physically abusive to him in the past.
Based on Jocelyn's testimony at the hearing that she was the victim of multiple sexual assaults, the trial court orally granted a protective order under Chapter 7A of the Code of Criminal Procedure. The trial court denied Jocelyn's request for a protective order under the Family Code, finding that although family violence had occurred in the past, "it [was] not likely to occur in the future[.]"
The trial court later memorialized its oral ruling in a written protective order issued on January 21, 2021. The written protective order recites the trial court's finding that "there are reasonable grounds to believe that [Jocelyn] is the victim of sexual assault or abuse under Section 22.011 of the Texas Penal Code." See Tex. Penal Code § 22.011 (defining offense of "sexual assault"). The protective order is effective for the duration of James's life.
The trial court denied James's motion for a new trial, and this appeal followed.
Statutory Interpretation
In his first issue, James argues that the trial court misinterpreted the requirements for a Chapter 7A protective order. According to James, article 7A.03(c) requires proof of a "criminal disposition" of a sexual assault charge before the trial court may find reasonable grounds to believe that a protective order applicant is the victim of sexual assault or sexual abuse.
James uses the phrase "criminal disposition" to refer to a "conviction of or placement on deferred adjudication community supervision for an offense listed in 7A.01(a)(1) or (2)."
A. Standard of Review
This appeal presents a question of statutory interpretation. Interpreting statutes is a legal matter, subject to de novo review. See HCBeck, Ltd. v. Rice, 284 S.W.3d 349, 352 (Tex. 2009); Stroud v. Grubb, 328 S.W.3d 561, 563 (Tex. App.- Houston [1st Dist.] 2010, pet. denied). Our primary objective when interpreting a statute is to ascertain and give effect to the Legislature's intent. Maxim Crane Works, L.P. v. Zurich Am. Ins. Co., 642 S.W.3d 551, 557 (Tex. 2022); McClelland v. Tex. HHS Comm'n, 635 S.W.3d 410, 416 (Tex. App.-Houston [1st Dist.] 2021, no pet.). To ascertain legislative intent, we look first to the plain and common meaning of the words used by the Legislature. See Tex. Gov't Code § 311.011(a); Argonaut Ins. Co. v. Baker, 87 S.W.3d 526, 529 (Tex. 2002). It is a well-settled rule of statutory construction that every word of a statute must be presumed to have been used for a purpose. City of Richardson v. Oncor Electric Delivery Co. LLC, 539 S.W.3d 252, 260 (Tex. 2018). In ascertaining legislative intent, we do not confine our review to isolated statutory words, phrases, or clauses, but we instead examine the entire act. Meritor Auto., Inc. v. Ruan Leasing Co., 44 S.W.3d 86, 90 (Tex. 2001). "We also consider the objective the law seeks to obtain and the consequences of a particular construction." Tex. Dep't of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex. 2004); Tex. Gov't Code § 311.023(1), (5).
B. Analysis
Jocelyn obtained a protective order under Chapter 7A of the Code of Criminal Procedure, which allows victims of certain criminal offenses, including sexual assault and abuse, to obtain permanent protective orders against those who the court finds there are reasonable grounds to believe committed those crimes. See Tex. Code Crim. Proc. arts. 7A.01-.03; see also State ex. rel. P.B. v. V.T., 575 S.W.3d 921, 925 (Tex. App.-Austin 2019, no pet.). Article 7A.03 provides:
(a) At the close of a hearing on an application for a protective order under this chapter, the court shall find whether there are reasonable grounds to believe that the applicant is the victim of sexual assault or abuse . . . .
(b) If the court makes a finding described by Subsection (a), the court shall issue a protective order that includes a statement of the required findings.Tex. Code Crim. Proc. art. 7A.03(a)-(b). The protective order "may be effective for the duration of the lives of the offender and victim or for any shorter period stated in the order." Id. art. 7A.07(a).
Relevant to the trial court's "reasonable grounds" finding and to James's argument on appeal is subsection (c) of article 7A.03, which provides:
(c) An offender's conviction of or placement on deferred adjudication community supervision for an offense listed in Article 7A.01(a)(1) or (2) constitutes reasonable grounds under Subsection (a).Id. art. 7A.03(c). James argues that the use of the word "constitutes" in this provision requires proof of a conviction or placement on deferred adjudication community supervision for an enumerated offense before the trial court can issue a Chapter 7A protective order. Jocelyn responds that the plain and common meaning of the word "constitutes" is nonexclusive in this context, and therefore, proof of an offender's "conviction of or placement on deferred adjudication community supervision for an [enumerated] offense" is only one way an applicant may show her entitlement to a protective order. Jocelyn argues that because the term "reasonable grounds" is not defined in Chapter 7A, or elsewhere in the Code of Criminal Procedure, James's interpretation of subsection (c) as a required element would render subsections (a) and (b) of the same provision meaningless. She asserts that if that was the legislative intent, the Legislature could have removed both subsections (a) and (b) when it enacted subsection (c), but it did not do so.
Construing Chapter 7A as a whole, and "giving effect to every word, clause, and sentence" within the statute, we see no reason why the Legislature would require a protective order applicant to wait for a criminal disposition of an enumerated offense before seeking protection from the offender. See In re Office of Att'y Gen., 422 S.W.3d 623, 629 (Tex. 2013); see also S. Pacific Transp. Co. v. Harris Cnty., 508 S.W.2d 484, 485 (Tex. Civ. App.-Houston [1st Dist.] 1974, writ ref'd) (statute "should be given a fair and sensible construction, in order to carry out the purposes for which it was enacted, and not to be construed in such manner as to nullify or defeat its purposes"). The primary purpose of the provisions authorizing entry of a protective order is to prevent sexual violence and to protect the victims of such violence; the intent is not to punish the offender. See Mahmoud v. Jackson, No. 05-21-00302-CV, 2022 WL 2167683, at *4 (Tex. App.-Dallas June 16, 2022, no pet.) (mem. op.); Ex parte Chairez, No. 08-00-00083-CV, 2001 WL 63033, at *3 (Tex. App.-El Paso Jan. 25, 2001, no pet.). "While the imposition of a protective order is always in response to an act or threat of violence, it can hardly be said that the order is either a 'prosecution' or a 'punishment' for that act or threat of violence." Lopez v. Occhiogrosso, No. 14-17-00324-CV, 2019 WL 347336, at *7 (Tex. App.- Houston [14th Dist.] Jan. 29, 2019, no pet.) (mem. op.) (internal citation omitted).
The Legislature's amendments to Chapter 7A made its provisions more protective, not less protective. For example, the Legislature adopted subsection (c) in 2019 at the same time it amended Article 7A.01 to include a mandate that a prosecuting attorney apply for a protective order on behalf of the victim of an enumerated offense. See Tex. Code Crim. Proc. art. 7A.01(a)(5). To encourage such applications, Article 7A.01(a-1) provides: "[I]f an application [for a protective order] has not yet been filed in the case . . ., the attorney representing the state shall promptly file an application for a protective order with respect to each victim of an [enumerated] offense [] following the offender's conviction of or placement on deferred adjudication community supervision for the offense." Id. art. 7A.01(a-1). Read together with these provisions in Article 7A.01, Article 7A.03(c)'s instruction that "[a]n offender's conviction of or placement on deferred adjudication community supervision for an [enumerated] offense [] constitutes reasonable grounds under Subsection (a)" may also be read as making it easier for-and thus encouraging- prosecutors to obtain relief for the victims of sexual violence. Moreover, by allowing a prosecuting attorney, to "promptly file an application for a protective order . . . following the offender's conviction of or placement on deferred adjudication community supervision. . ." "if an application [for a protective order] has not yet been filed in the case," Article 7A.01 contemplates situations in which an application for a protective order will be filed before a conviction is obtained. Id. art. 7A.01(a- 1) (emphasis added).
An interpretation that requires proof of a conviction or deferred adjudication would be inconsistent not just with the purpose of Chapter 7A, but also the plain language of article 7A.03(a). Subsection (a) requires a trial court to issue a protective order upon a finding that "there are reasonable grounds to believe that the applicant is the victim of sexual assault." Id. art. 7A.03(a) (emphasis added). This provision would be mere surplusage if Subsection (c) was interpreted as a requirement for obtaining a protective order in all cases. See Pedernal Energy, LLC v. Bruington Eng'g, Ltd., 536 S.W.3d 487, 491 (Tex. 2017) (courts take statutes as they find them and construe them "so that no part is surplusage, but so that each word has meaning"); Hous. Belt & Terminal Ry. Co. v. City of Hous., 487 S.W.3d 154, 164 (Tex. 2016) (courts must construe statute in way that avoids rendering any word or provision meaningless).
James focuses on the word "constitutes," but nothing indicates a legislative intent to use the word in an exclusive manner. "Constitute" is a transitive verb meaning to "make up, form, compose," or to "set up, establish." See Constitute, Merriam-Webster, https://www.merriam-webster.com/dictionary/constitute; see also Constitute, Black's Law Dictionary (11th ed. 2019) ("[t]o give legal or appropriate procedural form to (something); to establish by law. . . . [and] [t]o make up or form"). But it does not establish that method to the exclusion of other methods of proving reasonable grounds to believe the applicant is a victim of sexual assault.
For all these reasons, we conclude Chapter 7A does not require proof the offender was convicted of or placed on deferred adjudication community supervision for sexual assault before the trial court may find there are reasonable grounds to believe the applicant is the victim of sexual assault.
We overrule James's first issue.
Sufficiency of the Evidence
In his second issue, James argues that the evidence was legally and factually insufficient to support a Chapter 7A protective order because Jocelyn did not present any evidence that he was convicted of or placed on deferred adjudication community supervision for sexual assault, as required by Article 7A.03(c).
A. Standard of Review
We review the sufficiency of findings supporting a protective order under the same standard used in evaluating the sufficiency of evidence after a jury verdict. See Gabel v. Gabel-Koehne, 649 S.W.3d 590, 599 (Tex. App.-Houston [1st Dist.] 2022, no pet.). Likewise, when the trial court acts as the factfinder, we review its findings under the same sufficiency standards. Yang v. Cao, 629 S.W.3d 666, 670 (Tex. App.-Houston [1st Dist.] 2021, no pet.). When, as here, a party who does not have the burden of proof challenges the legal sufficiency of the evidence, we consider all the evidence in the light most favorable to the prevailing party, indulging every reasonable inference in that party's favor and disregarding contrary evidence unless a reasonable factfinder could not. Id.; City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).
We may not sustain a legal sufficiency, or "no evidence," point unless the record demonstrates: (1) a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence conclusively establishes the opposite of the vital fact. City of Keller, 168 S.W.3d at 810. If more than a mere scintilla of evidence exists, it is legally sufficient. Yang, 629 S.W.3d at 670. More than a scintilla of evidence exists if the evidence rises to a level that would enable reasonable and fair-minded people to reach differing conclusions. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004); Yang, 629 S.W.3d at 670.
In a factual sufficiency review, we consider and weigh all the evidence. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). When an appellant challenges an adverse finding on an issue on which he did not have the burden of proof at trial, we set aside the verdict only if the evidence supporting the finding is so weak as to make the verdict clearly wrong and manifestly unjust. Four J's Cmty. Living Ctr., Inc. v. Wagner, 630 S.W.3d 502, 516 (Tex. App.-Houston [1st Dist.] 2021, pet. denied).
B. Analysis
Our disposition of James's first issue is, in a sense, dispositive of his second issue. James's argument about the deficiency in Jocelyn's proof rests on an interpretation of Article 7A.03(c) that would require evidence of a conviction of or placement on deferred adjudication community supervision for sexual assault before the trial court could grant a protective order. We reject such an interpretation of Article 7A.03 in overruling James's first issue. Consequently, while it is undisputed that on the date the protective order issued, James had not been convicted of or placed on deferred adjudication community supervision for any enumerated offense against Jocelyn, such evidence was not required for a protective order under Chapter 7A. Instead, the trial court could find there were "reasonable grounds to believe that [Jocelyn] is the victim of sexual assault" based on Jocelyn's testimony that, on at least three occasions, James caused the penetration of her vagina with either his penis or fingers. See Tex. Code Crim. Proc. art. 7A.03(a); Tex. Penal Code § 22.011. We therefore hold the evidence was legally and factually sufficient to support the Chapter 7A protective order.
We overrule James's second issue.
Conclusion
We affirm the trial court's judgment.