Opinion
No. 05-11-00276-CV
03-19-2012
IN THE MATTER OF F.K.M.
AFFIRM and Opinion Filed March 19, 2012
On Appeal from the 292nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. CV10-00745-V-292
MEMORANDUM OPINION
Before Justices Moseley, FitzGerald, and Richter
Opinion By Justice Richter
Appellant, Bronc Justin McCoy, challenges a protective order entered in favor of F.K.M. In one issue, appellant contends there is no evidence or only a scintilla of evidence that family violence by him against F.K.M is likely to occur in the future. We affirm the trial court's order. The background of the case and the evidence admitted at trial are well known to the parties, and we therefore limit recitation of the facts. We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4 because the law to be applied in the case is well settled. I. FACTUAL AND PROCEDURAL BACKGROUND
On December 13, 2010, the Dallas County District Attorney's Office filed an application for a protective order against appellant on behalf of fifteen-year-old F.K.M. Shirley Ann Turner, F.K.M.'s maternal grandmother, requested the protective order. A temporary ex parte protective order was issued on the same day. On January 10, 2011, the trial court conducted a hearing on the application. F.K.M. and his grandmother testified at the hearing.
F.K.M. testified that appellant started living with him and his mother, Misty McCoy, when he was seven or eight years old. Appellant and Misty McCoy later married. Appellant is a police officer with the Dallas Police Department. F.K.M. described his relationship with appellant as “okay at first” but stated they stopped getting along when he was twelve or thirteen years old. F.K.M. testified that he was not allowed to go outside or hang out with his friends. When friends came over, appellant would search them before they could come into the house.
F.K.M. testified about two incidents of family violence by appellant. The first incident occurred in March, 2010. F.K.M was involved in an altercation at school and the school called his parents to come pick him up from school. Appellant picked F.K.M. up from school and said, “wait till we get home.” When they arrived at their house, appellant ordered F.K.M. to strip naked and stand in the corner. After thirty minutes, appellant called him over to the sofa and told him to hold out his arms. Appellant punched F.K.M. in the stomach with his fist, then grabbed him by the hair and threw him to the floor. Appellant sat on top of him and for approximately twenty minutes, hit and slapped F.K.M. in the face and chest while telling F.K.M he was a “sorry piece-of-shit son” and that he hated him. Finally appellant picked F.K.M. up off the floor and told him to go clean his room. Appellant also warned F.K.M. not to tell anyone about the incident. When his mother got home, F.K.M. told her he got in trouble at school but did not tell her what happened with appellant because he was scared. The next day his mother noticed a welt under F.K.M.'s eye and bruising on his chest. F.K.M. testified that he told her he got hurt during football practice.
F.K.M. also described a second incident that took place on July 6, 2010. F.K.M. and his mother had an argument about cleaning his room. He heard his mother call appellant and ask him to come home. F.K.M.'s mother began having a stress-induced seizure and F.K.M. testified that he tried to help her come out of it by talking to her, holding her hand, and rubbing her face.
Before the seizure began, Misty McCoy also called her mother, Shirley Ann Turner, and told her she was starting to feel like she was going to have a seizure. Turner and her husband immediately got in the car to drive to Waxahachie where the McCoys were living. While in route, Turner received a phone call from appellant who told her to turn around and go back home. Appellant told her he was on his way home and when he got there it was going to be ugly. Turner testified that appellant told her he hated that kid, he was going to kill him, and it was going to end today. Turner and her husband kept driving to Waxahachie, arrived at the house, and went into the bedroom to help Misty. F.K.M. also entered the bedroom, to try to help his mother. Appellant arrived and told F.K.M. to get out of the room. F.K.M. left the bedroom but went back in when he saw his mother was getting worse. Turner was at Misty's bedside trying to help and appellant was in the bathroom getting a cold towel for Misty. When appellant came out of the bathroom and saw F.K.M., he again ordered him to leave the room. When F.K.M. refused to leave, appellant hit him and pushed him into his grandfather who was sitting in a wheelchair. Then appellant pulled a taser from his belt and pointed it directly at F.K.M. Turner hit appellant's hand and told him he was not going to shoot her grandson. F.K.M. ran, trying to get to the garage. Appellant ran after F.K.M., caught him, and began choking him. Turner testified that she ran after them and tried to stop appellant. F.K.M. testified that he felt like he was going to pass out because appellant was choking him and holding him up with his feet off the ground. Turner tried to loosen appellant's grasp around F.K.M.'s neck and testified she may have bitten appellant to get him to stop. Appellant dropped F.K.M. but then began kicking him with his steel-toed boots. Appellant also kicked Turner as she tried to intervene. Turner testified she hit appellant in the head and yelled at F.K.M. to run. F.K.M. ran down the street and did not return to the house.
F.K.M. testified that he thought he was going to die at appellant's hands on July 6, 2010. He also testified that he still had concerns about his safety and the safety of his grandparents and mother. On cross-examination, F.K.M. testified that he had not spoken to appellant since July 6, 2010, and had not been threatened by appellant since that date.
At the conclusion of the hearing, the trial court determined that family violence had occurred and that family violence was likely to occur in the foreseeable future, and issued a protective order against appellant. Appellant filed his notice of appeal on February 9, 2011. II. DISCUSSION
In his sole issue on appeal, appellant argues there is no evidence or only a scintilla of evidence that family violence is likely to occur in the future.
A. Applicable Law
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 (West Supp. 2011). 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, [or] assault . . . .” Tex. Fam. Code Ann. § 71.004 (1) (West 2008).
A legal sufficiency challenge to a family violence protective order, like any other legal sufficiency challenge, may be sustained only when “(1) the record discloses 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 establishes conclusively the opposite of the vital fact.” Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998); see Clements v. Haskovec, 251 S.W.3d 79, 84 (Tex. App.-Corpus Christi 2008, no pet.). In determining whether there is legally sufficient evidence to support the finding under review, we must consider evidence favorable to the finding if a reasonable factfinder could and disregard evidence contrary to the finding unless a reasonable factfinder could not. Cent. Ready Mix Concrete Co., Inc. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827 (Tex. 2005). The fact finder is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. Ulmer v. Ulmer, 130 S.W.3d 294, 300 (Tex. App.-Houston [14th Dist.] 2004, no pet.); In re Cummings, 13 S.W.3d 472, 476 (Tex. App.-Corpus Christi 2000, no pet.). We will not substitute our judgment for that of the trial court merely because we might reach a different conclusion. Ulmer,130 S.W.3d at 301; B.C. v. Rhodes, 116 S.W.3d 878, 884 (Tex. App.-Austin 2003, no pet.).
B. Analysis
Appellant does not challenge the trial court's finding that family violence occurred; rather, he argues the evidence is legally insufficient to support the trial court's finding that family violence is likely to occur in the future. Appellant acknowledges that “the law clearly allows an inference of potential violence in the future from abusive conduct in the past.” However, appellant seeks to distinguish the facts of this case from cases in which there was a pattern of abusive conduct or threats that escalated into family violence. Appellant argues the conduct in this case was a single, isolated act unsupported by any other conduct or words. According to appellant, that is not the kind of evidence that allows an inference of likely future family violence. 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. See Teel v. Schifflett,309 S.W.3d 597, 604(Tex. App.-Houston [14th Dist.] 2010, pet. denied); Clements, 251 S.W.3d at 87. While past violence does not mandate a finding of likely future violence, it can support such a finding in some instances where, such as here, there were multiple instances of past violence, threats to kill the victim, and a vicious physical attack. See Banargent v. Brent, No. 14-05-00574-CV, 2006 WL 462268, at *2 (Tex. App.-Houston [14th Dist.] Feb. 28, 2006, no pet.) (mem. op.). In this case, F.K.M. testified regarding appellant's violent conduct on two different occasions. Shirley Ann Turner testified that she witnessed and attempted to defend F.K.M. during the second act of violence. The testimonies of F.K.M. and Turner were uncontroverted at the hearing because appellant did not call any witnesses to counter the allegations, nor did he testify himself in order to offer a different account of events. The trial court reasonably could have concluded that future violence was likely to occur based on the testimony showing a pattern of violent behavior. See Teel, 309 S.W.3d at 604; Clements, 251 S.W.3d at 87-88. Under the applicable standards of review, we conclude the evidence is legally sufficient to support the trial court's finding that appellant is likely to commit family violence in the future. We overrule appellant's issue.
III. CONCLUSION
Having overruled appellant's issue, we affirm the trial court's judgment.
MARTIN RICHTER
JUSTICE
Do Not Publish
Tex. R. App. P. 47
110276F.P05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
IN THE MATTER OF F.K.M.
No. 05-11-00276-CV
Appeal from the 292nd Judicial District Court of Dallas County, Texas. (Tr.Ct. Cause No. CV10-00745-V-292).
Opinion delivered by Justice Richter, Justices Moseley and FitzGerald participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED. It is ORDERED that appellee recover his costs of this appeal from appellant.
Judgment entered March 19, 2012.
MARTIN RICHTER
JUSTICE