

Opinion issued September
29, 2011.

In The
Court of
Appeals
For The
First District
of Texas
————————————
NO. 01-10-00515-CV
———————————
RUSSELL THOMAS BOYD, Appellant
V.
CHRISTINA MICHELLE PALMORE, Appellee

 

 
On Appeal from the 280th District
Court
Harris County, Texas

Trial Court Case No. 2010-11113
 

 
OPINION
          This
is an appeal from a protective order granted by the trial court against
appellant, Russell Thomas Boyd.  In a
single issue, Boyd challenges the legal and factual sufficiency of the evidence
to support the grant of the protective order. 
We affirm.
BACKGROUND
          Appellee, Christina Palmore, had
a daughter named Tessa with Boyd.  In
December 2009, after their relationship ended, Palmore
and Boyd agreed to the entry of an order that established visitation and
possession for Tessa.  
          In
late February 2010, Palmore filed her first amended
application for a protective order against Boyd.[1]  A week later, the court issued a temporary ex
parte protective order against Boyd.  Two
weeks after that, the trial court held an oral hearing on the application.  At the hearing, Palmore
testified that she was afraid of Boyd, that his “threats ha[d] become
increasingly worse,” that he had been “verbally abusive” to her, and that she
felt like he was stalking her.  Palmore then recounted several particular incidents
involving Boyd that caused her to fear for her safety.
          She
testified that in October 2009 (the “October 2009 incident”), Boyd followed her
to her mother’s office in Travis County, got out of his car, blocked her with
his body so she could not leave, and ended up jumping onto the hood of her
car.  Palmore
stated that she feared for her life during this incident and reported it to the
police.  She affirmed, however, that Boyd
was also delivering medication for Tessa at the time and that this was the only
incident in which Boyd had ever done “anything remotely physical” to her. 
          Palmore further testified that Boyd hired a private
investigator named Jerry, who had been following her since October 2009.  Although she had never seen Jerry, Boyd had
sent her text messages that were intended for Jerry.  Included among these were bizarre messages
apparently discussing automobile tracking devices and video of Tessa taken
inside of Palmore’s parents’ home.  Palmore also stated
that Boyd had told her there were hidden cameras in her house.  As a result of these communications, Palmore felt like she was “being watched.” 
          Palmore also recounted an incident from January 2010 in
which Boyd faked his own suicide (the “January 2010 incident”).  Pretending to be an individual named Alicia, Boyd sent Palmore a series
of bizarre messages, including the following:
          I’m
starting to really worry about [Boyd].
 
Tried the key but he’s got the top lock [of his
apartment door] locked.  Please tell me
what’s going on.  This man loves you more
than anything.  Please tell me if you’ve
heard from him.
 
          You
really are a cold heartless bitch.
 
Was on the phone with
sheriff.  They’re on their way here.  Neighbor heard a gunshot an hour ago.
 
Sheriff is here. 
What the hell did you do to him to make him do this?
          
Shot his self [sic] in the
head.  I hope you’re really happy now.
They said he’s holding a picture of him and a little
girl and a red head.
 
Hope you’re happy now.  You won’t have to worry about him anymore.
 
That man loved you more than anything and all you’ve
ever done is hurt him.  Now you can’t
anymore.
 
          EMS says he’s got a pulse and they’re working on him.
 
At some
point during this incident, Palmore called the number
from which she was receiving the messages and discovered that they were being
sent from Boyd’s work phone.  Toward the
end of the exchange, Boyd apparently conceded his identity, telling Palmore that he wanted “a chance to sit down and talk to
[her] about everything.”  He also
apologized for the fake text messages, telling Palmore
that it was “the only way [he knew] to get [her] to talk to [him].”    
Finally, Palmore also testified that Boyd threatened to commit
suicide again in mid-February 2010 and told her he had been admitted to a
mental hospital.  
          Boyd
testified that he had admitted himself to a mental hospital for five days in
February 2010 in order to get help for his depression.  He claimed to have been released with no
restrictions and to be on medication.  Boyd also maintained that an individual named
Lisa Strummond—not he—had sent the text messages
during the January 2010 incident. 
Finally, Boyd admitted to having hired a friend as a private
investigator to follow Palmore between October 8 and
November 11, 2009.  He stated, however,
that the friend was no longer authorized to do so.
          Two
individuals testified on Boyd’s behalf. 
John Eshelman, a longtime friend, testified
that he did not feel Boyd would hurt himself and had never seen him hurt Palmore or Tessa. 
Boyd’s sister, Kimberly White, concurred and stated that, in her view,
Boyd was a nonviolent person who had a loving relationship with his
daughter.  She noted that Palmore had never informed her of any violent acts
committed by Boyd. 
At the
conclusion of the hearing, the trial court granted Palmore’s
motion for a protective order.  In its
order, the court specifically found that Boyd had committed family violence and
that family violence was likely to occur in the future.  Boyd appeals the grant of this order.
LEGAL AND FACTUAL SUFFICIENCY
          In
his sole issue, Boyd claims that the acts which were proven as the basis for
the protective order do not qualify as "family violence" and thus
that the trial court’s finding that family violence has occurred in the past
and is likely to occur in the future is not supported by legally or factually
sufficient evidence. 
Standards of Review
When the
trial court acts as a fact-finder, we review its findings under the legal and
factual sufficiency standards.  In re Doe, 19 S.W.3d 249,
253 (Tex. 2000); Vongontard v. Tippit,
137 S.W.3d 109, 112 (Tex. App.—Houston [1st Dist.] 2004, no pet.).  When a party who does not have the burden of
proof at trial challenges the legal sufficiency of the evidence, we consider
all of the evidence in the light most favorable to the prevailing party,
indulging every reasonable inference in that party’s favor and disregarding
contrary evidence unless a reasonable fact-finder could not.  City of
Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.
2005); City of Houston v. Hildebrandt,
265 S.W.3d 22, 27 (Tex. App.—Houston
[1st Dist.] 2008, pet. denied) (citing Assoc.
Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 285–86
(Tex. 1998)).  “If there is any
evidence of probative force to support the finding, i.e., more than a mere
scintilla, we will overrule the issue.”  Hildebrandt, 265 S.W.3d at 27 (citing Haggar Clothing Co. v. Hernandez, 164 S.W.3d
386, 388 (Tex. 2005)).
In
reviewing a factual sufficiency challenge, we examine the entire record and
consider and weigh all the evidence, both in support of, and contrary to, the
challenged finding. See Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996);
Vongontard, 137 S.W.3d at 112. 
Having considered and weighed all the evidence, we should set aside the
verdict only if the evidence is so weak, or the finding is so against the great
weight and preponderance of the evidence, that it is clearly wrong and
unjust.  Cain v. Bain, 709 S.W.2d 175, 176 (Tex.
1986).  We cannot merely
substitute our opinion for that of the trier of fact
and determine that we would reach a different conclusion.  Hollander v. Capon, 853 S.W.2d 723, 726 (Tex. App.—Houston [1st
Dist.] 1993, writ denied). 
Family Code Provisions
Concerning Protective Orders
A court
shall render a protective order if the court finds that family violence (1) has
occurred and (2) is likely to occur in the future.  Tex.
Fam. Code Ann.  
§§ 81.001, 85.001 (Vernon 2008).  “Family violence” is defined, in pertinent
part, as
[A]n act by a member of a
family . . . against another member of the family . . . 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.
 
Tex. Fam. Code Ann. § 71.004(1) (Vernon
2008) (emphasis added). 
“Family” is defined to include individuals who are parents of the same
child.  Tex.
Fam. Code Ann. § 71.003 (Vernon
2008).
          Given
the remedial nature of Title IV of the Texas Family Code (of which the forgoing
sections are a part), courts should broadly construe
its provisions so as to effectuate its humanitarian and preventative
purposes.  See, e.g. United Fire & Cas.
Co. v. Boring & Tunneling Co. of Am., 321 S.W.3d 24, 28 (Tex. App.—Houston [1st Dist.]
2010, pet. denied).
Analysis
A. Evidence of Past Family
Violence
          Boyd
first contends that the evidence is legally and factually insufficient to show
that he committed family violence in the past. 
Although Boyd does not separate his legal and factual sufficiency
arguments, we will do so for purposes of clarity.  See Vongontard, 137 S.W.3d at 113.
1. Legal Sufficiency
          The evidence, viewed in
the light most favorable to the trial court’s finding, shows that in October
2009, Boyd followed Palmore to her mother’s office,
blocked her car, and jumped on her hood. 
Palmore’s own testimony shows that these
actions caused her to fear for her life and call the police.  The October 2009 incident, Palmore’s call to the police, and her testimony about her
fear is legally sufficient evidence that Boyd committed “an act . . . that
[was] a threat that reasonably placed [Palmore] in
fear of imminent physical harm, bodily injury, [or] assault,” thereby
satisfying the definition of “family violence.” 
See Tex. Fam. Code Ann. § 71.004(1).  
          We reject Boyd’s arguments,
which we consider in turn.  First, he
argues that the evidence is legally insufficient to show family violence
because he never touched Palmore during the October
2009 incident and there was no evidence that he ever committed any act that was
intended to result in physical harm, bodily injury, assault, or sexual assault
to Palmore.  Boyd
further points out that although Palmore claimed that
he threatened her, she provided no evidence of any words rising to the level of a threat that reasonably placed her in
fear of imminent harm.  We disagree,
however, because the act of blocking Palmore’s car
with his body and jumping on its hood constituted, in itself, a threat
satisfying the second part of the definition of “family violence,” even though
no actual physical harm resulted.  See Bedinghaus v.
Adams, No. 2-08-096-CV, 2009 WL 279388, at *3 (Tex. App.—Fort Worth Feb. 5,
2009, no pet.) (mem. op.)
(pointing out that because of the disjunctive “or” in the definition of “family
violence,” “a threat without an actual act of violence” is sufficient); Clements v. Haskovec, 251
S.W.3d 79, 85 (Tex. App.—Corpus Christi 2008, no pet.) (holding
that appellant’s act of raising his fist and making other threats was
sufficient to constitute “family violence” even though he never actually struck
his daughter or wife).  
Boyd’s
second argument is based on Palmore’s allegation,
contained in her first amended application for a protective order (filed on
February 25, 2010), that family violence had occurred during the previous 30
days.  Since the October 2009 incident occurred outside of
this 30-day period, Boyd argues that it is legally insufficient to support the
trial court’s finding of family violence.  However, no statutory provision prohibits a
court from basing a finding of family violence on an act occurring more than 30
days before the filing of an application for a protective order.  The only reference to a 30-day period in
Title IV of the Family Code occurs in a section dealing with the findings
necessary for a court to render a temporary ex parte order excluding a party
from a residence.  See Tex. Fam.
Code Ann. 
§ 83.006(b) (Vernon 2008). 
It is true that Palmore’s first amended
application contained two applications—an application for a temporary ex parte
order (including an order excluding Boyd from her residence) and an application
for a standard protective order to be rendered after full notice and hearing. 
However, the language referring
to the 30-day period appears only in the section of the application containing Palmore’s request to exclude Boyd from her residence as
part of the temporary ex parte order. 
Because Boyd does not challenge the court’s grant of the temporary ex
parte order, we reject this argument.
          In a third argument, Boyd contends that evidence of the
October 2009 incident is legally insufficient because Palmore
did not mention it among the acts allegedly constituting family violence in her
amended application or in her attached affidavit.  However, an application for a standard
protective order need only contain (1) the name and county of residence of the
applicant, (2) the name and county of residence of the individual alleged to
have committed family violence, (3) the relationship between the applicant and
the individual, and (4) a request for a protective order.  Tex. Fam. Code Ann. § 82.004 (Vernon
2008).  Palmore’s amended application undoubtedly met these
requirements.  We therefore hold that evidence
of the October 2009 incident is legally sufficient to support a finding of past
family violence.[2]
2. Factual Sufficiency
          In his brief, Boyd makes several points concerning the
October 2009 incident.  He notes that he
never touched Palmore during the incident and did not
damage her car.  He highlights White’s
testimony that Palmore never mentioned any fear of
Boyd or any past violent acts committed by him. 
He also points out that the incident occurred months before Palmore applied for a protective order, and that the two
successfully negotiated agreed visitation of Tessa after the incident occurred.  The record also shows that Boyd was at Palmore’s mother’s office, at least in part, to deliver
medicine to Tessa.
          However,
the trier of fact is the sole judge of the
credibility of the witnesses and the weight to be given their testimony.  GTE Mobilnet of  S. Tex. Ltd. P’Ship
v. Pascouet, 61 S.W.3d 599, 615–16 (Tex. App.—Houston [14th Dist.] 2001,
pet. denied).  Thus, the trial court was
free to place greater weight on Palmore’s testimony and
conclude that Boyd’s actions during the October 2009 incident placed her in
reasonable and imminent fear for her safety. 
The evidence supporting the trial court’s finding that family violence
had occurred is not so weak as to be clearly wrong or manifestly unjust and is
therefore factually sufficient.
B. Evidence of Likelihood of Future
Family Violence
          Boyd next contends that there is
legally and factually insufficient evidence to show that he was likely to
commit an act of family violence in the future.
1. Legal Sufficiency
          Boyd
argues that the evidence is legally insufficient because it fails to show that
he engaged in a pattern of threats of violence or a pattern of violent
acts.  He contends that the October 2009
incident was an isolated event and that none of the other acts complained of by
Palmore rose to the level of family violence.
          The
statutory language of Title IV does not require that a likelihood finding be
based on more than one act of family violence. 
See Tex. Fam. Code Ann.  
§§ 81.001, 85.001. 
On the contrary, courts have recognized that “[o]ftentimes, 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.); accord 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.).   Under this principle, Boyd’s commission of
an act of family violence during the October 2009 incident would permit a
finding that he was likely to engage in future family violence. 
          Boyd points out that there was a
pattern of family violence in both Teel
v. Shifflett, 309 S.W.3d 597, 604 (Tex.
App.—Houston [14th Dist.] 2010, denied), and Clements, 251 S.W.3d at 87–88.  But, while those cases can be
construed as holding that a pattern of family violence is sufficient to support
a likelihood finding, neither case held that such a pattern was a necessary
prerequisite to such a finding.
          Viewing
it in the light most favorable to the trial court’s finding, as we must, the
evidence shows that, in the months following the October 2009 incident, Boyd
continued to harass Palmore via text messaging.  Combined with the violence that occurred
during the October 2009 incident itself, this provides more than a scintilla of
evidence that, if not
enjoined, Boyd would commit acts of family violence against her in the
future.  Thus, the trial court’s finding
is supported by legally sufficient evidence.
2. Factual Sufficiency
Boyd highlights several pieces of evidence that
tend to challenge the trial court’s finding that future family violence was
likely to occur.  These include evidence
that Boyd (1) never physically hurt Palmore, (2)
worked out an agreed visitation schedule for Tessa in December 2009, (3)
voluntarily sought treatment for depression in February 2010, was put on
medication, and was released without restrictions, (4) lived several hours away
from Palmore and saw her only when they exchanged
Tessa, and (5) did not contact Palmore at all for
several weeks before the hearing.  
Against each of these stand the following
considerations.  First, although Boyd
never physically harmed Palmore, evidence of the
October 2009 incident in which he committed family violence was uncontroverted.[3]  Second, while Palmore
affirmed that she worked out a visitation schedule for Tessa with Boyd, she
added that “I wouldn’t say that I felt safe doing it.”  Third, the only proof that Boyd received
psychological treatment was provided by his own testimony and that of White,
his sister.  When asked about that claim,
Palmore expressed skepticism, stating that “he says
he did [check himself into a mental hospital] but I don’t know for sure.”  Fourth, the October 2009 incident occurred in
Travis County—a substantial distance from Harris County, where Boyd was living
at the time.  It also occurred at a time
when Boyd was ostensibly seeking to deliver Tessa’s medicine to Palmore.  Fifth, the
fact that Boyd did not contact Palmore in the
immediate lead-up to the hearing may have been due to the effectiveness of the
protective order proceedings (including the trial court’s grant of the
temporary ex parte protective order) rather than to a voluntary subsidence on
his part.  Palmore’s
statement that she was still afraid of Boyd certainly provided support for this
view.
After
evaluating all of the evidence, judging the credibility of the witnesses, and
weighing the testimony, the trial court could have reasonably concluded that
Boyd was likely to commit another act of family violence.  Because the evidence supporting the trial court’s finding is
not so weak as to be clearly wrong or manifestly unjust, we overrule Boyd’s
factual sufficiency challenge.  See Bedinghaus, 2009 WL 279388, at *3–4 (evidence was factually sufficient to support
trial court’s finding that future violence was likely to occur—despite defendant’s testimony that his actions
were taken out of context and that he never threatened nor intended to cause
complainant physical harm—as there
was testimony that defendant sent excessive and sometimes threatening text
messages to victim, hired a private investigator to follow her, and sent the
private investigator’s reports to the victim).
CONCLUSION
We affirm
the protective order of the trial court.
 
 
 
 
                                                                   Sherry
Radack
                                                                   Chief
Justice 
 
                                                                   
Panel consists of Chief Justice Radack and
Justices Sharp and Brown.
 
Justice Sharp, dissenting.




[1]        This
application included a request for both a temporary ex parte protective order
and a standard protective order following full notice and hearing. 


[2]
          Two
other points bear mentioning as well. 
First, Palmore filed her first amended
application on February 25 and the temporary ex parte protection order was not
rendered until March 3.  Section 82.0085
is therefore inapplicable.  See Tex.
Fam. Code Ann. § 82.0085 (Vernon 2008) (requiring that an application
for a protective order filed before the expiration of a previously rendered
protective order contain “a description of the threatened harm that reasonably
places the applicant in fear of imminent physical harm, bodily injury, assault,
or sexual assault”).  Second, Boyd argues
that since he was not served with Palmore’s original
application, any acts allegedly constituting family violence mentioned therein,
but not mentioned in the first amended application or introduced at the
hearing, should not be considered in support of the protective order.  Because our holding does not rely on any such
evidence, we need not reach this issue.


[3]        Boyd references Clements, which stated that “there is case law which
suggests that [a single, isolated act of violence in the past] is insufficient
for a finding that future violence is likely to occur.”  251 S.W.3d at 87–88.  Besides being dicta, this assertion
was ultimately based on the fact that the
“past is prologue” principle derives from parental termination and child custody
cases.  Those cases, in turn, require a
heightened standard of review.  See Tex.
Fam. Code § 161.001 (Vernon 2008) (in suit to terminate parent-child
relationship, each finding required for termination must be based on “clear and
convincing evidence”); see also In re C.H., 89 S.W.3d 17, 25–26 (Tex.
2002) (affirming heightened factual-sufficiency review in such cases).  Factual sufficiency review of family violence
protective orders, however, does not entail such a heightened standard.  Thus, an episode of family violence, coupled
with continued harassment, permits an inference that family violence is likely
to occur in the future.


