Opinion
No. 05-16-00724-CV
06-01-2017
IN THE MATTER OF E.A.K.
On Appeal from the 292nd Judicial District Court Dallas County, Texas
Trial Court Cause No. CV16-00181V-292nd
MEMORANDUM OPINION
Before Justices Francis, Brown, and Schenck
Opinion by Justice Francis
Appellant Marcus Dewon Sallis appeals a protective order issued in favor of E.A.K., his ex-girlfriend and mother of their son. In two issues, appellant contends (1) there is factually insufficient evidence to support a finding he was likely to commit family violence in the future and (2) the protective order exceeds the scope of allowable statutory protections by including a provision prohibiting him from coming within 500 feet of E.A.K.'s confidential school address. We conclude the first issue is without merit. The State concedes the second issue. Accordingly, we modify the protective order to remove the challenged provision and affirm as modified.
E.A.K. testified she and appellant met in the summer of 2011 and began dating in November 2012. In the beginning, she said the relationship was "pretty good" because appellant traveled for his job and most of their interactions were by text message or email. When appellant returned to Dallas, she said they began dating seriously and she became pregnant. At first, they considered an abortion and went to a clinic. E.A.K. was seven weeks' pregnant at the time. She and appellant went in separate cars. When E.A.K. arrived, picketers and rioters were outside the clinic and came to her car. She was afraid and drove off.
E.A.K. called appellant and asked him to meet her around the corner. When appellant arrived, E.A.K. said she was crying and emotional as she got into his car to discuss their decision. E.A.K. said appellant "got very angry" and, without warning, took his open hand and bashed her head against the passenger side window. E.A.K. started to cry and scream, and appellant was "yelling very loudly." E.A.K. ran to her car, drove off, and called 911. She met police nearby and made a report. Although the incident terrified her, she said she ultimately agreed not to prosecute the case because she and appellant were "having a child together."
In February 2014, when E.A.K. was almost nine months' pregnant, a second incident occurred. E.A.K. was preparing for a baby shower scheduled the next day. E.A.K. said there were several tasks that appellant needed to complete, and he became "very agitated and angry." He yelled at her and called her a name, and she asked him to leave. As she was walking down the stairs, E.A.K. said appellant pushed her and she stumbled down six stairs to the landing. She got up, ran down the remaining stairs, and tried to open the front door. She said appellant put both hands on her chest and pushed her, causing her to fall backward over a stroller. E.A.K. said appellant's mother jumped on appellant and dragged him out the door, enabling E.A.K. to close the door and lock it. Appellant stood outside the door for several minutes screaming at E.A.K. before leaving. E.A.K. said her young daughter from a previous marriage watched the incident from the top of the stairs. E.A.K. said she called the police, but appellant was not arrested.
After that incident, E.A.K. said she was "very afraid," and she and appellant did not see each other until C.S. was born the following month. Following his birth, she said they were "trying to figure out" what was going to happen next. When C.S. was about three weeks old, appellant came to her house to visit him. She and appellant got into an argument over medical bills that they previously agreed to split. She said appellant began "raising his voice" and pushed her against the living room wall. Her sister, Nicole, witnessed the incident and told appellant to leave. Nicole corroborated E.A.K.'s story at trial. Nicole testified she was in the kitchen when she heard them arguing. She "peeked" into the room and saw appellant push E.A.K. against the wall. She said E.A.K. was holding the baby at the time and was still recovering from a Caesarian section operation. This was the only occasion Nicole said she witnessed physical abuse, but she said appellant raised his voice "[a]ll the time."
The next incident occurred when E.A.K. and appellant took C.S. for his one-year checkup. E.A.K. said appellant was agitated during the appointment and tried to block her from leaving the room at the end of the exam. While she was checking out, appellant grabbed C.S. and left without saying anything. E.A.K. hurried after him and, because of their history, started to record what was happening on her phone.
Appellant walked to his car and said he was leaving with C.S., even though the child was supposed to leave with E.A.K. Appellant had C.S. in one hand and was trying to open his car door with the other, and E.A.K. asked him to give her C.S. She said appellant turned around "very forcefully with his elbow" and elbowed her in the chest. E.A.K. said she fell to the ground and began screaming. Once she stood up, appellant handed her C.S., but took her cell phone and threw it across the parking lot. She ran to her car with C.S., locked her doors, and called 911 from the cell phone she used for work as a realtor. A photograph depicting a bruise on her chest was admitted into evidence.
The final incident occurred on March 22, 2016. At that time, E.A.K. and appellant had a "strained relationship" but had been attending co-parenting classes. The classes had interfered with appellant's regularly scheduled visitation, so she contacted him to see if he wanted to spend time with C.S. They agreed to meet at 5 p.m. at a hotel parking lot at I-635 and Preston Road in Dallas, but the traffic was heavy and E.A.K. called to let him know she would be late. When she pulled into the parking lot twenty-three minutes late, she said appellant immediately began yelling at her, scolding her for being late, and calling her names. When she took C.S. out of his car seat and tried to hand him to appellant, appellant refused to take him, saying E.A.K. did not "take his time seriously" and that she was "going to pay for this."
E.A.K. walked back to her car and put C.S. in his car seat. Appellant followed and grabbed her by the back of her arms and pulled her backward, causing her to fall on her tailbone. Appellant turned to take C.S. out of his car seat as E.A.K. got up and turned on her phone to record him. She said when appellant saw her with her cell phone, he "los[t] it" and came toward her. E.A.K. said she jumped on top of C.S., who was still in his car seat, to get in her vehicle and close the door. She locked the back doors, and appellant tried to force open the door. As she was climbing over the console area to lock the front doors, appellant entered her car through the front driver's side door. Appellant pushed E.A.K. backward into the passenger seat and pinned her down "by the neck" with one of his arms. E.A.K. said she was gasping for air, and then appellant squeezed her wrist until it popped and her cell phone fell from her hand. Appellant took her cell phone and got out of her car. E.A.K. was trying to "figure out" what to do when she realized she had lost her shoes on the parking lot. She got out to get them and then drove to a nearby sandwich shop to call police. The police took a report and photographed her injuries, which included scratches, bruises, and a swollen wrist. Several photographs depicting her injuries were admitted into evidence as well as a photograph showing damage to her vehicle's door handle.
E.A.K. testified other things happened in between the incidents she had detailed in her testimony. She said appellant has "great anger" and is unpredictable, so most of their interaction is negative. Even so, she acknowledged, they are still working on sharing time with their son. She said she needed a protective order because the incidents with appellant "have continued to evolve and get worse" and she was afraid she would "end up brutally hurt or even dead." She also said her daughter is "deathly afraid" of appellant and will not go anywhere that appellant may be. E.A.K. said she needed "protection to live my life and to protect my children and myself."
E.A.K. was cross-examined on differences between her affidavit in support of the protective order, a voluntary statement to police, and her testimony at trial. E.A.K. acknowledged that with respect to the February 2014 incident, her voluntary written statement given at the time of the incident did not include any allegation that appellant pushed her down the stairs. Rather, in her statement, she said appellant went down the stairs before her and, once downstairs, pushed her over the stroller. E.A.K. explained the omission by saying she was "traumatized" when she made the statement and also "ran out of room" on the sheet of paper provided by police.
With respect to the March 22 incident, appellant's counsel played an audio recording of that incident, presumably made by appellant. E.A.K. acknowledged she did not hear appellant call her any names, as she had testified. When questioned on whether there was ever a time that she could not breathe, E.A.K. said there was a six- to seven-second pause in her screaming and talking on the recording that showed the moment appellant was choking her. She also acknowledged hearing a third party say, "I saw her coming after you." E.A.K. said the person misperceived the situation, explaining that she got out of her car and went the same way as appellant to get her shoes but denied "going after" appellant.
After the March 22 incident, E.A.K. filed an application for a protective order. The trial court heard the evidence over two days. At the conclusion of the hearing, the trial court granted the application, finding family violence had occurred and family violence was likely to occur in the foreseeable future. The court issued a protective order prohibiting appellant from committing family violence against E.A.K.; communicating directly with her in a threatening or harassing manner; communicating a threat through any person to E.A.K.; going to or within 500 feet of E.A.K.'s residence, employment or business, and school but withholding the school address; engaging in conduct directed specifically toward a person who is protected by an order that is reasonably likely to harass, annoy, alarm, abuse, torment, or embarrass the person; and possessing a firearm. Appellant's motion for new trial was denied. This appeal followed.
In his first issue, appellant argues the evidence is factually insufficient to support the trial court's finding that he was likely to commit family violence in the future.
This Court reviews challenges to family violence protective orders under legal and factual sufficiency standards of review. In re Frasure, No. 05-13-01667-CV, 2015 WL 459223, at *5 (Tex. App.—Dallas Feb. 4, 2015, no pet.) (mem. op.); In re F.K.M., No. 05-11-00276-CV, 2012 WL 939271, at *3 (Tex. App.—Dallas Mar. 9, 2012, no pet.) (mem. op.). In reviewing a factual sufficiency challenge, we weigh all the evidence in the record. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); Floyd v. Floyd, No. 05-15-00997-CV, 2016 WL 4690030, at *2 (Tex. App.—Dallas Sept. 7, 2016, no pet.) (mem. op.). We will overturn a finding only if it is so contrary to the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Ortiz, 917 S.W.2d at 772. In making our review, we are mindful that the factfinder is the sole judge of the credibility of the witnesses and the weight to be given their testimony. In re Frasure, 2015 WL 459223, at *5.
Texas intermediate courts of appeals disagree about the standard of review to be applied when reviewing the sufficiency of the evidence to support issuance of a protective order. Compare In re Epperson, 213 S.W.3d 541, 542 (Tex. App.—Texarkana 2007, no pet.) (applying abuse of discretion standard because protective order provides injunctive relief) with St. Germain v. St. Germain, 14-14-00341-CV, 2015 WL 4930588, at *2 & n.1 (Tex. App.—Houston [14th Dist.] Aug. 18, 2015, no pet.) (reviewing protective orders under legal and factual standards of review).
Under the sections of the Texas Family Code relevant to this case, a court shall render a protective order if it finds that family violence has occurred and is likely to occur in the future. TEX. FAM. CODE ANN. §§ 81.001, 85.001 (West 2014). The definition of "family violence" includes "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." Id. § 71.004(1) (West Supp. 2016). "Family" includes "individuals who are the parents of the same child[.]" Id. § 71.003 (West 2014).
Appellant argues the evidence is factually insufficient to support the trial court's finding that family violence is likely to occur in the future because E.A.K. relied only on past events. He contends evidence that family violence occurred in the past is not enough to show family violence is likely to occur in the future. But this Court has previously rejected this exact contention. See Vives v. Gersten, 05-13-01463-CV, 2014 WL 7498016, at *4 (Tex. App.—Dallas Dec. 29, 2014, no pet.) (mem. op.) ("In cases involving family violence protective orders, evidence that a person has engaged in abusive conduct in the past permits an inference that the person will continue this behavior in the future."); In re Frasure, 2015 WL 459223, at *6 (same).
Here, there was evidence that appellant physically abused E.A.K. both before and after the birth of their child. E.A.K. detailed several instances of abuse, beginning when she was seven weeks' pregnant and appellant bashed her head against the car window. Over the next two years, appellant pushed her down the stairs and knocked her over a stroller, pushed her against a wall, elbowed her in the chest, and pinned her down by the neck and choked her. In all of these instances, E.A.K. was either pregnant or their child was present. In addition to these incidents, there was also evidence appellant verbally abused E.A.K. Based on E.A.K.'s testimony of multiple instances of past family violence, the trial court could reasonably infer family violence was likely to occur in the future. Viewing the evidence in a neutral light, the evidence supporting the trial court's finding is not so weak or so contrary to the overwhelming weight of all the evidence as to be clearly wrong and unjust. We resolve appellant's first issue against him.
In his second issue, appellant contends the protective order exceeds the protections allowed in section 85.007 of the family code by including item 8, which prohibits him from going within 500 feet of E.A.K.'s confidential school address in Dallas County. He argues that section 85.007(a)(3) of the family code permits a court to withhold the address of a "child-care facility or school a child protected by the order attends or in which a child resides." See TEX. FAM. CODE ANN. § 85.007(a)(3). He argues (1) E.A.K. made no request for confidentiality and (2) the provision would not apply to any school she attends because she is an adult.
The State concedes error, saying (1) the record did not establish that E.A.K. attended a school in Dallas County nor did it contain any request for confidentiality as required by statute and (2) the plain language of section 85.007 would not apply to withholding the address of a school attended by E.A.K., an adult. The State asks that we modify the order to omit the provision. Given the State's concession of error, we sustain issue two without analysis and modify the protective order to remove item 8.
As modified, we affirm the trial court's order.
/Molly Francis/
MOLLY FRANCIS
JUSTICE 160724F.P05