Opinion
02-23-00393-CV
08-29-2024
Tracey Lynn Walther, Appellant v. David Michael Walther, Appellee
On Appeal from the 367th District Court Denton County, Texas Trial Court No. 23-3729-367
Before Kerr, Birdwell, and Bassel, JJ.
MEMORANDUM OPINION
ELIZABETH KERR JUSTICE
In two issues challenging evidentiary sufficiency-both legal and factual- Tracey Walther appeals the trial court's protective order entered against her based on findings of family violence directed toward her husband, David Walther, and of the likelihood of future family violence. Because the evidence supports the family-violence findings, we will affirm.
Because this appeal deals with evidentiary sufficiency, we will save laying out the facts developed at trial until later in this opinion.
In February 2022, David filed for divorce from Tracey after a thirty-plus-year marriage. In May 2023, David applied for a protective order in Denton County, where Tracey lived. After conducting a bench trial in July 2023 at which only David and Tracey testified, the trial court entered a final protective order that will expire in July 2025. At Tracey's request, the trial court entered findings of fact and conclusions of law supporting the protective order's recitations that "family violence has occurred and that family violence is likely to occur in the future" and that Tracey "ha[d] committed family violence." Tracey unsuccessfully objected to certain of those findings and conclusions and then timely appealed.
For ease of reference, we will use the parties' first names.
Standard of Review
A trial court's findings of fact have the same force and dignity as a jury's answers to jury questions. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991). As with jury findings, a trial court's fact-findings on disputed issues are not conclusive, and when the appellate record contains a reporter's record, an appellant may challenge those findings for evidentiary sufficiency. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). We review evidentiary sufficiency to support challenged findings using the same standard we apply to jury findings. Id. In a bench trial, findings of fact are the exclusive province of the trial court, making it the sole judge of the witnesses' credibility. Bell Helicopter Textron, Inc. v. Burnett, 552 S.W.3d 901, 913 (Tex. App.-Fort Worth 2018, pet. denied).
We may sustain a legal-sufficiency challenge-that is, a no-evidence challenge-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. Gunn v. McCoy, 554 S.W.3d 645, 658 (Tex. 2018). In determining whether legally sufficient evidence supports the finding under review, we must consider evidence favorable to the finding if a reasonable factfinder could and must disregard contrary evidence unless a reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827 (Tex. 2005). We indulge "every reasonable inference deducible from the evidence" in support of the challenged finding. Gunn, 554 S.W.3d at 658 (quoting Bustamante v. Ponte, 529 S.W.3d 447, 456 (Tex. 2017)).
When reviewing an assertion that the evidence is factually insufficient to support a finding, we set aside the finding only if, after considering and weighing all the pertinent record evidence, we determine that the credible evidence supporting the finding is so weak, or so contrary to the overwhelming weight of all the evidence, that the finding is clearly wrong and unjust. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986) (op. on reh'g); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965).
If the evidence is factually sufficient, then it is necessarily legally sufficient. In re A.S., No. 02-16-00076-CV, 2016 WL 3364838, at *7 (Tex. App.-Fort Worth June 16, 2016, no pet.) (mem. op.).
Applicable Law
Under the then-current version of Texas Family Code Section 81.001, the trial court had to render a protective order if it found by an evidentiary preponderance that "family violence has occurred and is likely to occur in the future." Act of April 15, 1997, 75th Leg., R.S., ch. 34, § 1, 1997 Tex. Gen. Laws 76, 77 (amended 2023) (current version at Tex. Fam. Code Ann. § 81.001); see B.E.K. v. C.E.O., No. 02-23-00025-CV, 2024 WL 3195849, at *5 (Tex. App.-Fort Worth June 27, 2024, no pet. h.) (mem. op.) (citing Roper v. Jolliffe, 493 S.W.3d 624, 638 (Tex. App.-Dallas 2015, pet. denied) (holding that evidentiary-preponderance standard applies because Family Code protective-order proceedings are civil in nature)).
Effective September 1, 2023, amendments to Section 81.001 removed the "likely to occur in the future" required finding, but this case arose under the earlier version. See Tex. Fam. Code Ann. § 81.001.
As pertinent here, "family violence" means an act by a family member against another family member that is "intended to result in physical harm, bodily injury, [or] assault . . . or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, [or] assault." Tex. Fam. Code Ann. § 71.004(1). No physical harm, bodily injury, or assault must actually occur. See, e.g., Burt v. Francis, 528 S.W.3d 549, 553-54 (Tex. App.-Eastland 2016, no pet.) (noting that because Family Code's protective-order provisions are "remedial" in nature, "courts should broadly construe its provisions so as to effectuate its humanitarian and preventative purposes" (quoting Boyd v. Palmore, 425 S.W.3d 425, 430 (Tex. App.-Houston [1st Dist.] 2011, no pet.))); Clements v. Haskovec, 251 S.W.3d 79, 85 (Tex. App.-Corpus Christi-Edinburg 2008, no pet.) (concluding that although appellant had never struck his wife or daughter, "the allegations that [appellant] made threats to his wife and daughter and raised his fist at his daughter are sufficient to implicate his conduct as 'family violence'"). And even where no express threats are conveyed, the factfinder may nevertheless determine that someone was made reasonably fearful. Wilmeth v. State, 808 S.W.2d 703, 706 (Tex. App.-Tyler 1991, no pet.) (noting that even without verbal threats, a reasonable person can be placed in fear by a menacing glance and hand gesture).
Evidence of past abusive conduct permits an inference that violent behavior will continue in the future. Huskins v. Garcia, No. 02-21-00328-CV, 2022 WL 3905083, at *3 (Tex. App.-Fort Worth Aug. 31, 2022, no pet.) (mem. op.); see In re Epperson, 213 S.W.3d 541, 544 (Tex. App.-Texarkana 2007, no pet.) ("Oftentimes, past is prologue; therefore, past violent conduct can be competent evidence [that] is legally and factually sufficient to sustain the award of a protective order."). Additionally, a finding that family violence is likely to occur in the future can be based on a single act of past family violence. B.E.K., 2024 WL 3195849, at *6 ("A finding that family violence is likely to occur in the future can be based on a single act of past family violence."); Boyd, 425 S.W.3d at 432 (noting that statute "does not require that a likelihood finding be based on more than one act of family violence"); see Fontenot v. Fontenot, 667 S.W.3d 894, 915 (Tex. App.-Houston [14th Dist.] 2023, no pet.) (explaining that although pattern of family violence suffices to support future-likelihood finding, a pattern is not a prerequisite to such a finding).
The Evidence Is Factually Sufficient
Sufficient evidence supports the trial court's findings that Tracey committed family violence and that it was likely to happen again. We begin with the facts concerning an event preceding the protective order at issue and that were the subject of the trial court's Findings of Fact Nos. 8 through 10.
Septem ber 2022 event
On September 9, 2022, Tracey-who had served in the United States Army for 20 years as a military policeman and investigator-drove an hour and a half from Denton to David's residence in Kemp, Kaufman County, Texas. But Tracey was intercepted by law enforcement and arrested, and David was not home in any event. Several days later, David's brother-in-law Calvin Martin forwarded David a voicemail message that Tracey had left for Calvin that night. In it, she can be heard saying "Calvin, this is Tracey. I'm going to kill David, and then commit suicide by cop. Please call me. I need help. I hate him." See Finding No. 8 (describing the voicemail and noting David's testimony that "he contacted police after receiving this threat as he was concerned for his safety"). David obtained Kaufman County district-attorney and sheriff's-office records showing that on the same night, Tracey had been arrested near his home for resisting arrest, assaulting a peace officer, and making a terroristic threat. See Findings Nos. 9, 10.
Tracey had called one of their adult daughters while driving to Kemp and made threatening statements against David. That daughter called the police, who pulled Tracey over.
On September 12, 2022, David executed an affidavit in support of a protective-order application in Kaufman County in which he stated, "I am fearful of future family violence, dating violence, and/or stalking." He averred that "[b]ased on the police report [from her September 9 arrest], Tracey had a hatchet in the trunk of her car and told officers that she had only threatened that night/early morning to 'maim' me and 'kick my ass[,]' not kill me." David's affidavit also recited that Tracey had "threatened [him] with a hammer during the summer of 2022, while [he] was assisting [their] 21[-]year[-]old daughter retrieve her clothes." Later that month, however, David withdrew his Kaufman County protective-order request out of concern for his family. At trial, David pointed to the September 2022 incident as contributing to his existing fear of Tracey.
David testified at trial that he believed Tracey had in fact "inten[ded] to kill" him on September 9, 2022. And although Tracey testified that she had not meant the "I'm going to kill David" statement in her voicemail for Calvin but was instead expressing a cry for help, she did not controvert, explain, or even mention what David had said in his affidavit about her expressed intent to "maim" him or "kick [his] ass." Regardless, the Family Code does not require intending to cause death or making a death threat; intending or threatening physical harm or bodily injury suffices to constitute family violence. Tex. Fam. Code Ann. § 71.004(1).
This single incident of family violence, which the trial court discussed in its findings and obviously found credible based on the evidence, is enough to support the future-likelihood requirement of the protective order. See B.E.K., 2024 WL 3195849, at *6; Boyd, 425 S.W.3d at 432.
2023 events
On the night of February 19, 2023, Tracey left two voicemail messages on David's phone that were admitted into evidence without objection. According to David, these were only two of "hundreds" of voicemails Tracey had left for him; without objection, he characterized the majority of them as "very threatening" in nature. In the two voicemails played at trial, which David had partially transcribed in the affidavit supporting his May 2023 protective-order application, Tracey can be heard saying such things as, "David, this is Tracey. Did you really have to f*** me"; "Hand this recording to your f***ing lawyer, tell him that I'm coming and I'm looking through your records"; "I'm not mad, I'm pissed off"; "You know how we stop this. Give me what I want"; and "I should come over here [sic] right now." The trial court's Finding No. 11 characterized these voicemails as "vulgar, used profanity, and were harassing and threatening in nature."
On April 23, 2023, Tracey appeared uninvited at David's RV in Princeton, Collin County, even though he had purposely not disclosed his new address to her when he moved there in January 2023. David was not home but was alerted by his video security system of her arrival. The video recordings, which were admitted without objection at trial, show Tracey moving around David's RV, removing two plastic storage bins from underneath it, and taking them away. David testified that she had also disconnected the power to his RV, noting that his security-camera feed seemed to have ended abruptly and that when he returned home, he found the electrical cord unplugged and the electricity disconnected.
Tracey testified that she had not gone to David's RV for any malicious purpose but was instead responding to a fraud alert tied to an unfamiliar address; she recognized the RV upon arriving and admitted removing "a red bin and something else," as well as taking pictures to show that David "had a trailer there for a side business that he continued to have."
The trial court's Finding No. 12 described this incident.
Three days later, on April 26, 2023, Tracey emailed David with the subject line "We will both lose." In its Finding No. 13, the trial court quoted portions of that email: "Let's just divorce, I'm never going to give you money. We will destroy everything before that happens. YOU AND I WILL SUFFER. I will no longer be paying the MORTGAGE," and "[S]tay silent and by Texas State law watch me destroy it all."
David also testified to a situation with his shotgun, which he had given to his son for skeet shooting but that Tracey had apparently taken away. Although the trial court's Finding No. 14 addressed this fact, it was not tied to any family-violence finding or conclusion of law, so we do not consider it.
Analysis
Under the applicable law, we conclude that the trial court's findings of past and likely future family violence were supported by factually sufficient evidence. Tracey has not demonstrated that David's evidence was so weak, or that contrary evidence was so overwhelming, as to lead us to conclude that the trial court's findings are clearly wrong and unjust. Mar. Overseas, 971 S.W.2d at 407.
Tracey cites one case in discussing the voicemail she left on Calvin's phone, arguing that because her threat to kill David was made to a third party rather than to David himself, it does not fall within the definition of family violence. Garcia v. Tautenhahn, 314 S.W.3d 541, 545 (Tex. App.-Corpus Christi-Edinburg 2010, no pet.) (affirming denial of mother's sexual-assault protective order against father and noting that "[e]vidence that [father's] sister contacted [mother] is not probative of whether [father] subjected [mother] to a threat reasonably placing her in fear of further harm, because the person contacting [mother] was not [father]"). But Garcia is distinguishable. There, Garcia-who had had a child resulting from Tautenhahn's sexual assault-sought a protective order because Tautenhahn had told his family about the child, and his sister had reached out to Garcia on MySpace asking to see the child. Id. at 543, 545. Garcia claimed that she felt emotionally threatened by the prospect of further contact with Tautenhahn. Id. at 543-44. On those facts, the court of appeals upheld the trial court's denial of the protective order. In addition to the above parenthetical discussing the sister's contact-which is the only sentence that Tracey quoted-the Garcia court noted that "the fact that Tautenhahn expressed his desire to see his child" by contacting the Attorney General to convey that wish did not establish a threat of further harm to Garcia, especially where he had not contacted Garcia directly. Id. at 545. But here, even if Garcia stood for the proposition that the trial court should not have credited Tracey's statement to Calvin as a threat of family violence within the statutory definition, her voicemail message was not the only fact on which the trial court relied in entering its protective order.
Tracey also mentions in passing, without citing or discussing any authority, that David's testimony about what happened the night of September 9, 2022, was hearsay because he had no personal knowledge of those events. But Tracey did not object to the admission of either her voicemail message to Calvin or her arrest records on hearsay grounds. To preserve a complaint for appellate review, a party must present to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling, if not apparent from the request's, objection's, or motion's context. Tex.R.App.P. 33.1(a)(1)(A); see also Tex. R. Evid. 103(a)(1). If a party fails to do this, error is not preserved. Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on reh'g). Tracey thus failed to preserve her hearsay complaint for our review.
She did object to the voicemail message but only on the basis of no proper predicate.
In sum, factually sufficient evidence-which is necessarily legally sufficient- supports the trial court's findings of past family violence and the likelihood of future family violence. We overrule Tracey's two issues.
Conclusion
Having overruled both of Tracey's issues, we affirm the trial court's final protective order.