law-protective-order | order of protection domestic violence |
HOUSTON PROTECTIVE ORDER CASE 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(a) (Vernon 2008). 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.).
When reviewing the legal sufficiency of the evidence, we consider the evidence in the light most favorable to the
challenged finding and indulge every reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.
3d 802, 823 (Tex. 2005). We must credit favorable evidence if a reasonable factfinder could and disregard
contrary evidence unless a reasonable factfinder could not. See id. at 827. We must determine whether the
evidence at trial would enable reasonable and fair-minded people to find the facts at issue. See id. The factfinder
is the only judge of witness credibility and the weight to give to testimony. See id. at 819.
When reviewing a challenge to the factual sufficiency of the evidence, we examine the entire record, considering
both the evidence in favor of, and contrary to, the challenged finding. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.
1986). After considering and weighing all the evidence, we set aside the fact finding only if it is so contrary to the
overwhelming weight of the evidence as to be clearly wrong and unjust. Pool v. Ford Motor Co., 715 S.W.2d 629,
635 (Tex. 1986). The trier of fact is the sole judge of the credibility of the witnesses and the weight to be given to
their testimony. GTE Mobilnet of S. Tex. v. Pascouet, 61 S.W.3d 599, 615–16 (Tex. App.—Houston [14th Dist.]
2001, pet. denied). We may not substitute our own judgment for that of the trier of fact, even if we would reach a
different answer on the evidence. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998). The
amount of evidence necessary to affirm a judgment is far less than that necessary to reverse a judgment.
Pascouet, 61 S.W.3d at 616.
Members-of-Same-Household Evidence
A “household” is a “unit composed of persons living together in the same dwelling, without regard to whether they
are related to each other.” Tex. Fam. Code Ann. § 71.005 (Vernon 2008). A “member of a household” includes a
person who previously lived in the household. Tex. Fam. Code Ann. § 71.006 (Vernon 2008).
Both parties testified that they intended to marry on July 7, 2007, and that on July 4, 2007, Teel moved her
belongings to Shiflett’s house. Shiflett testified that prior to this move, Teel had lived with him for at least one
month. Teel testified that she did not intend to live with Shiflett until after their wedding and, despite the fact that
she spent several nights at his house and moved her belongings into his house, she did not consider herself as
having moved into his house to establish a household because she maintained an apartment at which she
received mail. The trial court found that on July 5, 2007, the parties established a household.
Although the parties’ cohabitation was intermittent due to their disagreements, the uncontroverted evidence is that
they intended to marry and Teel moved her belongings into Shiflett’s house. Teel gave birth to a child in January
2008, and both parties believe the child was fathered by Shiflett.[3] Under the applicable standards of review, we
conclude that the evidence is legally and factually sufficient to support the trial court’s finding that Shiflett and Teel
had formed a household. Accordingly, we overrule Teel’s third issue.
Family-Violence-Likely-to-Occur-in-the-Future Evidence
Teel does not challenge the trial court’s finding that family violence occurred; rather, she argues the evidence is
legally and factually insufficient to support the trial court’s finding that family violence is likely to occur in the
future. Teel points out that Shiflett never testified that he “believed” or “feared” that Teel would commit family
violence in the future and argues that Shiflett never presented any objective evidence that would show a likelihood
that Teel would commit family violence in the future.
In parental-termination and child-custody cases, “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.” In re T.L.S. and
R.L.P., 170 S.W.3d 164, 166 (Tex. App.—Waco 2005, no pet.). This principle also applies in cases involving
protective orders against family violence. Banargent v. Brent, No. 14-05-00574-CV, 2006 WL 462268, at *1–2
(Tex. App.—Houston [14th Dist.] Feb. 28, 2006, no pet.) (mem. op.). “Oftentimes, past is prologue; therefore,
past violent conduct can be competent evidence which is legally and factually sufficient to sustain the award of a
protective order.” In re Epperson, 213 S.W.3d 541, 544 (Tex. App.—Texarkana 2007, no pet.). In this case,
Shiflett testified to several instances of violence, one in which police officers had to subdue Teel with a taser
because she would not relinquish a weapon. The trial court reasonably could have concluded that future violence
is likely to occur based on the testimony showing a pattern of violent behavior. See Banargent, 2006 WL 462268,
at *1–2; Clements v. Haskovec, 251 S.W.3d 79, 87–88 (Tex. App.—Corpus Christi 2008, no pet.). Under the
applicable standards of review, we conclude that the evidence is legally and factually sufficient to support the trial
court’s finding that Teel is likely to commit family violence in the future. Accordingly, we overrule Teel’s fourth
issue.
Teel v. Shifflett (Tex.App.- Houston [14th Dist.] Feb. 23, 2010)(Frost)
(protective order against ex-girlfriend, same household finding affirmed, constitutional challenge not properly
presented, intimate partner finding not supported by the pleadings or tried by consent)
This is an appeal from a protective order entered against a man’s former girlfriend after the trial court determined that the former
girlfriend committed family violence against him and was likely to commit family violence in the future. In four issues, the former
girlfriend challenges (1) the constitutionality of the statute under which the protective order was issued, (2) a recitation in the
judgment that the parties were “intimate partners” pursuant to 18 U.S.C. §§ 922(g)(8) & 921(a)(32), (3) the legal and factual
sufficiency of the evidence to support a finding that the former girlfriend was a household member, and (4) the legal and factual
sufficiency of the evidence to support a finding that family violence is likely to occur in the future. We modify the judgment to delete
the intimate-partners finding and we affirm the trial court’s judgment as modified.
AFFIRMED AS MODIFIED: Opinion by Justice Frost
Before Justices Brock Yates, Frost and Brown
14-08-00836-CV Ashleigh Elise Teel v. Kenneth Richard Shifflett
Appeal from 309th District Court of Harris County
Trial Court Judge: David D. Farr
Concurring Opinion by Justice Brock Yates in Teel v. Shifflett (no right to jury trial in suit for protective
order under family code)
Bridgwater v. Arceneaux (pdf)(Tex.App.- Houston [1st Dist.] Feb. 18, 2010)(per curiam dismissal)
(two-year protective order had expired, rendering appeal moot)
DISMISS APPEAL: Per Curiam
Before Justices Keyes, Sharp and Massengale
01-08-00416-CV Tom Bridgwater v. Laura Arceneaux
Appeal from 311th District Court of Harris County
Trial Court Judge: Hon. Annette Kuntz
Ford v. Harbour (Tex.App.- Houston [14th Dist.] Mar. 17, 2009)(Anderson)
(Family Code protective order)
AFFIRMED: Opinion by Justice Anderson
Before Chief Justice Hedges, Justices Anderson and Seymore
14-07-00832-CV Michael Alan Ford v. Selma Gay Harbour
Appeal from 311th District Court of Harris County
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