Opinion
05-21-01167-CV
06-21-2023
DIEGO VELASQUEZ, Appellant v. XIMENA RAYON, Appellee
On Appeal from the 429th Judicial District Court Collin County, Texas Trial Court Cause No. 429-54055-2021
Before Justices Partida-Kipness, Nowell, and Kennedy
MEMORANDUM OPINION
ROBBIE PARTIDA-KIPNESS, JUSTICE
Appellant Diego Velasquez appeals a family-violence protective order issued under Title 4 of the Texas Family Code. In two issues, Velasquez contends the protective order should be vacated because the trial court did not make the statutorily-required findings that family violence occurred and is likely to occur in the future, and the evidence is legally and factually insufficient to support such findings. Because we agree the trial court did not make the required finding that family violence is likely to occur in the future, we vacate the trial court's order and dismiss the case. We note that nothing in this opinion prevents appellee Ximena Rayon from seeking further relief from the trial court in the form of a new protective order.
BACKGROUND
Velasquez is Ximena Rayon's step-father. On July 12, 2021, Ximena filed an application for protective order against Velasquez. In it, Ximena alleged that in 2020, Velasquez "asked to have sex with me with his penis near my face." Ximena was twenty years old when she filed the Application. She sought and obtained a temporary ex parte protective order and one extension of the temporary order. Velasquez moved to vacate the temporary order. Ximena also filed a supplemental application for protective order that included a one-page, written narrative signed by Ximena. She states in the narrative that Velasquez last abused her in "2017 - 2019 or 2020." Ximena's narrative consisted of a ten-point list of Ximena's allegations against Velasquez. The list included allegations that Velasquez masturbated in front of Ximena, showed his penis to Ximena on multiple occasions, and asked Ximena to have sex with him.
At the time of the hearing on Ximena's application for protective order, her mother, Rosa Velasquez, was married to Velasquez.
Ximena's mother and two sisters filed separate applications for protective order against Velasquez the same day.
The pleading describes the attachment as a "narrative." The narrative is not sworn and does not include the information required to be considered an unsworn declaration. Tex. Civ. Prac. & Rem. Code § 132.001(a) (An unsworn declaration may be used "in lieu of a written sworn declaration, verification, certification, oath, or affidavit required by statute or required by a rule, order, or requirement adopted as provided by law.").
On August 13, 2021, the trial court held a hearing on the Application. Ximena testified Velasquez masturbated in front of her and propositioned her for sex. She also recalled an incident on a camping trip in Oklahoma during which Velasquez stood by her bed while she was sleeping, stared at her, and touched his penis. Ximena also told the court of an incident in the kitchen at home. Ximena was wearing headphones but was not listening to music when Velasquez stood close to her, stared at her, and said "stuff he wanted to do with" her. Ximena testified that over a three-year period, more than twenty incidents happened with Velasquez. She told the court that she is afraid of Velasquez and the situation shattered her family life. At the time of the hearing, Ximena no longer lived at the same address as Velasquez. She testified that she does not expect to go back to Velasquez's home and does not expect to be around him anymore.
The trial court heard all four applications during the same hearing. Velasquez invoked the Rule and the applicants (Ximena, her mother, and her two sisters) were excluded from all proceedings but their own. See Tex. R. Evid. 614 ("At a party's request, the court must order witnesses excluded so that they cannot hear other witnesses' testimony.").
Velasquez also testified at the hearing. He stated that Ximena's testimony was a lie and that his other step daughters and his wife also lied during their testimony at the hearing. Velasquez told the court that he does not expect to have Ximena over to his home in the future and there is no reason she would need to go to his home. When asked if there was any reason for him to have any contact with Ximena in the future, he answered "No."
At the conclusion of the hearing, the trial court made the following findings on the record:
Having heard the testimony of the applicants and of the respondent today, the Court finds that the pro -- a protective order will be appropriate for the daughters.
I do not find that there -- that the stalking -- the application describes stalking as the offensive conduct; that is, the family violence. I don't find that that supports a protective order. However, I believe that under the definition of family violence, it is included that a person -- a member of a household may intentionally make -- an act by a member of the household against another member of the 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 one's self.
The Court finds that three young women were placed in a position that, by the act of the respondent against each one of them, that they were placed in a position that they could have reasonably believed that -- that they might be sexually assaulted. And, in fact, I think there was some testimony that was very close to actual assault, but I didn't hear any more detail.
So for those reasons, I'm granting the protective orders for the daughters, but not for the mother or the wife -- still the wife of the respondent.
The trial court signed a Final Protective Order on December 7, 2021, and made the following findings in it:
The Court finds that Diego Velasquez is the step father of Ximena Rayon.
The Court finds that family violence has occurred. The Court finds that Respondent, Diego Velasquez, has committed family violence. The Court finds that the following protective orders are for the safety and welfare and in the best interest of Applicant Ximena Rayon and are necessary for the prevention of family violence[.]
The Final Protective Order prohibited Velasquez from doing the following:
• Committing family violence assault or sexual assault in fear of eminent body harm, as defined by section 71.004 of the Texas Family Code.
• Communicating directly with Ximena in a threatening or harassing manner.
• Communicating a threat through any person to Ximena.
• Communicating in any manner with Ximena except through his attorney.
• Going to or near the residence or place of employment or business of Ximena.
• Engaging in conduct directed specifically toward Ximena that is reasonably likely to harass, annoy, alarm, abuse, torment, or embarrass her.
The trial court also ordered that Velasquez's license to carry a concealed handgun be suspended and prohibited him from possessing a firearm or ammunition. The Final Protective Order is in effect until August 13, 2023.
Velasquez timely appealed the Final Protective Order. Ximena did not file a brief in this proceeding or otherwise appear.
STANDARD OF REVIEW
We review the sufficiency of the evidence supporting a protective order under the same standard used in evaluating the evidence to support a jury verdict. Dolgener v. Dolgener, 651 S.W.3d 242, 256 (Tex. App.-Houston [14th Dist.] 2021, no pet.); accord Pleasant v. Black, No. 05-20-01040-CV, 2022 WL 807190, at *4 (Tex. App.-Dallas Mar. 17, 2022, no pet.) (mem. op.).
In reviewing a legal sufficiency challenge, we consider whether the evidence at trial would enable a reasonable and fair-minded factfinder to reach the verdict under review. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). Evidence is legally insufficient to support a finding only when (1) the record bears no evidence of a vital fact, (2) the rules of law or of evidence bar the court 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 a vital fact. Shields LP v. Bradberry, 526 S.W.3d 471, 480 (Tex. 2017). We consider evidence favorable to the finding if a reasonable factfinder could and disregard contrary evidence unless a reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007). All the record evidence must be considered in the light most favorable to the party in whose favor the verdict has been rendered, and every reasonable inference deducible from the evidence is to be indulged in the prevailing party's favor. Gunn v. McCoy, 554 S.W.3d 645, 658 (Tex. 2018).
When reviewing a factual sufficiency challenge, a court of appeals sets aside the finding only if, after considering and weighing all of the evidence in the record pertinent to the finding, it determines the credible evidence supporting the finding is so weak, or so contrary to the overwhelming weight of all the evidence, that the answer should be set aside and a new trial ordered. Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 615 (Tex. 2016). The factfinder is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. Vives v. Gersten, No. 05-13-01463-CV, 2014 WL 7498016, at *3 (Tex. App.-Dallas Dec. 29, 2014, no pet.) (mem. op.) (citing GTE Mobilnet of S. Tex. LP v. Pascouet, 61 S.W.3d 599, 615-16 (Tex. App.-Houston [14th Dist.] 2001, pet. denied)). We will not substitute our judgment for the trial court's merely because we might reach a different conclusion. Id.
ANALYSIS
In two issues, Velasquez challenges the legal and factual sufficiency of the evidence to support the Final Protective Order. We address his second issue first because the resolution of that issue is dispositive. In his second issue, Velasquez contends the protective order should be vacated because the trial court did not make the statutorily-required finding that family violence is likely to occur in the future, and the evidence is legally and factually insufficient to support a finding that family violence is likely to occur in the future.
Section 82.002 of the Texas Family Code allows a person to file an application for a protective order to protect against family violence. Tex. Fam. Code § 82.002 (setting out who may file application for protective order and under what circumstances); Id. § 71.004 (defining "family violence"). "A court shall render a protective order as provided by Section 85.001(b) if the court finds that family violence has occurred and is likely to occur in the future." Tex. Fam. Code § 81.001. Section 85.001 provides:
(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; and
(2)may render a protective order as provided by Section 85.021 applying to both parties that is in the best interest of the person protected by the order or member of the family or household of the person protected by the order.
Tex. Fam. Code § 85.001. To issue a family-violence protective order, the trial court is required to find whether family violence has occurred and whether family violence is likely to occur in the future. See Sharp v. Jimmerson, No. 01-20-00360-CV, 2021 WL 3624712, at *4-5 (Tex. App.-Houston [1st Dist.] Aug. 17, 2021, no pet.) (first citing Tex. Fam. Code § 85.001(a), and then citing Taylor v. Taylor, 608 S.W.3d 265, 272 (Tex. App.-Houston [1st Dist.] 2020, no pet.)).
Section 85.001(a) does not specify the manner in which a court is to provide the required findings. Cox v. Walden, No. 13-20-00283-CV, 2022 WL 120014, at *2 n.3 (Tex. App.-Corpus Christi-Edinburg Jan. 13, 2022, no pet.) (mem. op.) (citations omitted); accord In re M.I.W., No. 04-17-00207-CV, 2018 WL 1831678, at *2 (Tex. App.-San Antonio Apr. 18, 2018, no pet.) (mem. op.)); Pleasant v. Black, No. 05-20-01040-CV, 2022 WL 807190, at *5 (Tex. App.-Dallas Mar. 17, 2022, no pet.) (mem. op.) (following Cox and declining to hold that a court is required to orally render the required family violence findings at the protective order hearing). However, a trial court is required to make the family violence finding in some way after the protective order hearing. See Sharp, 2021 WL 3624712, at *4-5 (sustaining sufficiency challenge to protective order and vacating the order because the trial court did not make the required family violence findings); Maldonado v. Bearden, No. 01-17-00371-CV, 2018 WL 4087411, at *5-6 (Tex. App.-Houston [1st Dist.] Aug. 28, 2018, no pet.) (mem. op.) (concluding that because no element of recovery sought by applicant (i.e., violation of prior protective order) was included in trial court's findings of fact, appellate court could not presume any such findings in support of issuance of protective order and, thus, evidence was legally insufficient to sustain the trial court's issuance of family-violence protective order).
Here, the trial court made no finding that family violence is likely to occur in the future. The trial judge's verbal findings at the conclusion of the hearing mentioned only the alleged past acts of Velasquez:
The Court finds that three young women were placed in a position that, by the act of the respondent against each one of them, that they were placed in a position that they could have reasonably believed that -- that they might be sexually assaulted. And, in fact, I think there was some testimony that was very close to actual assault, but I didn't hear any more detail.
The written findings included in the Final Protective Order are similarly limited:
The Court finds that family violence has occurred. The Court finds that Respondent, Diego Velasquez, has committed family violence. The Court finds that the following protective orders are for the safety and
welfare and in the best interest of Applicant Ximena Rayon and are necessary for the prevention of family violence[.]
Although the use of the word "prevention" indicates a desire to stop future acts of family violence from occurring, the trial court made no finding that such future acts are likely to occur.
Where the trial court fails to make findings of fact and conclusions of law that include the required findings, "we can neither presume the existence of these omitted findings in support of the judgment nor independently review the record to ascertain whether the evidence would support such findings had they been made." Taylor, 608 S.W.3d at 272 (vacating trial court's family-violence protective order because trial court failed to make required findings that respondent either committed family violence and was likely to commit family violence in future or had violated prior family-violence protective order); see also Sharp, 2021 WL 3624712, at *4-5; Maldonado, 2018 WL 4087411, at *5-6 (same).
Here, the trial court's findings of fact and conclusions of law lack any reference to the required finding that family violence is likely to occur in the future. As such, we can neither presume the existence of these omitted findings in support of the judgment nor independently review the record to ascertain whether the evidence would support such findings had they been made. See Sharp, 2021 WL 3624712, at *5 (first citing Tex.R.Civ.P. 299, and then citing Taylor, 608 S.W.3d at 272). Because our review is limited to the confines of the findings of fact issued by the trial court in this case, we hold that the evidence is legally insufficient to sustain the trial court's issuance of the protective order pursuant to the family code. We sustain Velasquez's second issue. We decline to address the remaining arguments raised by Velasquez because doing so is unnecessary to the resolution of this appeal. See Dang v. Van Tran, No. 05-22-00518-CV, 2023 WL 3772809, at *6 (Tex. App.-Dallas June 2, 2023, no pet. h.) (mem. op.); see also United Rentals, Inc. v. Smith, 445 S.W.3d 808, 814 (Tex. App.-El Paso 2014, no pet.) (citing Tex.R.App.P. 47.1).
CONCLUSION
The trial court failed to make all findings required by section 85.001(a) of the family code. The Final Protective Order is, therefore, not supported by legally sufficient evidence. Accordingly, we vacate the trial court's Final Protective Order and dismiss the case. See Sharp, 2021 WL 3624712, at *5; see also Taylor, 608 S.W.3d at 272. We note that nothing in this opinion prevents Ximena from seeking further relief from the trial court in the form of a new protective order.
JUDGMENT
In accordance with this Court's opinion of this date, the December 7, 2021 Final Protective Order is VACATED and the case is DISMISSED.
It is ORDERED that the parties each bear their own costs of this appeal.
Judgment entered this 21st day of June 2023.