Summary
In Banargent, the court of appeals held that "[w]hile past violence does not mandate a finding of likely future violence, it can support such a finding in some instances, such as here, where there were multiple instances of past violence, threats to kill the victim, and a particularly vicious and disabling physical attack."
Summary of this case from Williams v. BowlesOpinion
No. 14-05-00574-CV
Memorandum Opinion filed February 28, 2006.
On Appeal from the 387th District Court, Fort Bend County, Texas, Trial Court Cause No. 05-CV-140790.
Affirmed.
Panel consists of Chief Justice HEDGES and Justices YATES and GUZMAN.
MEMORANDUM OPINION
This is an appeal from a protective order entered against appellant Robert Lee Banargent after he attacked and stabbed appellee Brenda J. Brent. In two issues, Banargent challenges the legal and factual sufficiency of the evidence to support the order. We affirm.
Brent and Banargent were living together when Banargent attacked and repeatedly stabbed Brent in the back and neck, leaving her legs and one arm paralyzed. This was not the first time Banargent had assaulted Brent. He had threatened to kill her before, and Banargent told her while stabbing her that he wanted her to die. Banargent was convicted and sentenced to life imprisonment for his attack on Brent. While he was in custody but before he was convicted, Brent applied for a protective order. She testified that she was afraid Banargent would escape, make bail, or be acquitted, and she wanted the police to be able to arrest him immediately if he came near her again. The trial court granted the protective order.
Under section 85.001 of the Texas Family Code, the trial court may grant a protective order upon finding that family violence has occurred and is likely to occur again. TEX. FAM. CODE ANN. § 85.001(a) (Vernon 2002). In reviewing a trial court's findings of fact for legal and factual sufficiency, we apply the same standards that we apply in reviewing jury findings. Ulmer v. Ulmer, 130 S.W.3d 294, 299 (Tex.App.-Houston [14th Dist.] 2004, no pet.). In reviewing for legal sufficiency, we view the evidence in a light that tends to support the disputed findings and disregard all evidence and inferences to the contrary. See Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 782 (Tex. 2001). If more than a scintilla of evidence exists, then the evidence is legally sufficient. Id. In reviewing factual sufficiency, we examine the entire record, considering both the evidence in favor of, and contrary to, the challenged findings. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). After considering and weighing all the evidence, we set aside a fact finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986).
In his first issue, Banargent contends the evidence was insufficient to show that family violence is likely to occur in the future. Banargent claims that he does not know Brent's current whereabouts and has not attempted to contact her since his incarceration began. He argues that past family violence alone cannot support a finding that future violence is likely. We disagree. As the Waco Court of Appeals recently explained,
During the last decade, a principle has emerged in parental termination and child custody cases which recognizes that evidence that a parent has engaged in abusive or neglectful conduct in the past permits an inference that the parent will continue this behavior in the future. . . . This principle should apply in family violence protective order cases as well.
In re T.L.S., 170 S.W.3d 164, 166 (Tex.App.-Waco 2005, no pet.); see also In re M.G.M., 163 S.W.3d 191, 201-02 (Tex.App.-Beaumont 2005, no pet.) (finding sufficient evidence of risk of future violence based on past abuse). While past violence does not mandate a finding of likely future violence, it can support such a finding in some instances, such as here, where there were multiple instances of past violence, threats to kill the victim, and a particularly vicious and disabling physical attack. We conclude that the evidence is legally and factually sufficient to support the trial court's finding that future violence is likely.
Banargent relies on two cases from the Corpus Christi Court of Appeals to support his argument that past violence alone cannot support a finding of future violence. See In re J.A.T., No. 13-04-00477-CV, 2005 WL 1981497, at * 1 (Tex.App.-Corpus Christi Aug. 18, 2005, no pet.) (mem. op.); Gipson v. Huerta, No 13-02-00490-CV, 2003 WL 21666140, at *2 (Tex.App.-Corpus Christi July 17, 2003, no pet.) (mem. op.). We are not persuaded by these cases. Their conclusions are stated with little analysis, and neither involved a brutal attack, the repeated acts of violence, or the death threats involved in this case.
Banargent emphasizes that he is serving a life sentence, making it even less likely that he could assault Brent again. When the trial court granted Brent's request for a protective order, Banargent had not yet been convicted, and the outcome of his trial was uncertain, as is inherent in criminal proceedings. Our review is limited to reviewing the evidence in the record before the trial court when the decision was made, which certainly could not include evidence of future events. Further, even considering Banargent's incarceration, the protective order will protect Brent for one year if Banargent is ever released from prison. See Tex. Fam. Code Ann. § 85.025(c) (Vernon 2002) ("If a person who is the subject of a protective order is confined or imprisoned on the date the protective order would expire[,] . . . the order expires on the first anniversary of the date the person is released from confinement or imprisonment."). Thus, the trial court was well justified in entering the protective order, whether or not we consider Banargent's incarceration. We overrule Banargent's first issue.
Banargent asserts in his second issue that the evidence is legally and factually insufficient "to establish that a protective order is necessary for the safety, welfare, and protection" of Brent. The Family Code requires only that the trial court find that family violence has been committed and likely will be committed again. See TEX. FAM. CODE ANN. § 85.001 (Vernon 2002) ("Required Findings and Orders"). Banargent offers no authority or analysis demonstrating that any additional finding is required. Moreover, he argues both issues together and focuses his argument solely on future violence. Because we conclude the evidence is legally and factually sufficient to support a finding of likely future violence, we overrule this issue as well.
We affirm the trial court's protective order.