      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-08-00282-CV



                                  Danny Lee Kennell, Appellant

                                                  v.

                              Stephanie Monique Rogers, Appellee


      FROM THE DISTRICT COURT OF BELL COUNTY, 426TH JUDICIAL DISTRICT
          NO. 226,203-E, HONORABLE FANCY H. JEZEK, JUDGE PRESIDING



                             MEMORANDUM OPINION


                Appellant Danny Lee Kennell challenges a protective order entered against

him pursuant to Title IV of the Texas Family Code. See Tex. Fam. Code Ann. §§ 71.001-87.004

(West 2002 & Supp. 2008). In two issues, Kennell contends that the evidence was factually

insufficient to support the trial court’s findings that domestic violence had occurred and was likely

to reoccur and the granting of a protective order. For the reasons that follow, we affirm the order

of the trial court.


                                         BACKGROUND

                Shortly after her divorce in 2006, Stephanie Monique Rogers and Kennell began

dating. Rogers, an army lieutenant on active duty at Fort Hood, acquired a house in Killeen and

lived with Kennell and the child born of their relationship. As their relationship deteriorated, Rogers

became fearful of Kennell and, in October 2007, she sought a protective order prohibiting Kennell
from committing family violence against or otherwise communicating with or contacting her and the

child except as provided in the order.

               In November 2007, the trial court conducted a hearing on Rogers’s application for

a protective order. Rogers testified in support of her application for a protective order. In addition,

several friends and co-workers testified to their observations concerning the relationship between

Rogers and Kennell.

               At the hearing, Rogers testified to acts of violence committed by Kennell. In

December 2006, Rogers and Kennell traveled with their baby to Kennell’s mother’s house in

Louisiana. Rogers testified that Kennell accused her of cheating on him and locked her out of the

house. As she beat on the door to get inside where Kennell was with the baby, Kennell came outside

and hit her twice in the face. Rogers testified that she fell to the ground: “When I tried to get up

again, he hit me. He went inside. Once he came out, he came out with the baby.” Rogers claimed

that Kennell choked her and then drove off in the car with the baby. Because Kennell had left

Rogers in Louisiana on a prior occasion and she had had to find a way to get back to Killeen, she

called her parents who lived nearby in Baton Rouge. After giving a statement to the police, Rogers

drove to Baton Rouge with her parents. No charges were filed against Kennell.

               In his testimony, Kennell acknowledged that he locked Rogers out of the house

and left with their child, but denied that he made physical contact with her. He testified, “To my

knowledge, I didn’t do anything because she called the police and the police didn’t arrest me nor did

the police come after me or serve me papers.” Kennell acknowledged that “[w]hat I think I did at

that time was, took my son from the home and I gave her the keys to the rent-a-car and I took the son

from my mother[’s] home and we left.” A Fort Hood co-worker of Rogers testified that Rogers was

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distressed and upset about the incident; Rogers advised the co-worker that Kennell hit her “and there

were police involved.” Rogers and Kennell reconciled when they returned to Fort Hood.

               In September 2007, Rogers testified that she was giving the baby a bath when Kennell

entered the bathroom. An altercation occurred when the baby threw up on Kennell and he attempted

to force himself close to Rogers and wipe it on Rogers. When Kennell slammed the bathroom door

closed and Rogers attempted to push him “out of my way,” Kennell grabbed her arm and pushed her

against a towel rack, bruising her on her back and arm. He then left the bathroom and began

watching television in the living room “as though nothing happened.” Rogers was bruised and had

a mark on her back and a purple bruise on her left arm. The co-worker testified that she observed

the bruises on Rogers’s back and arm the morning after the incident occurred and told Rogers that

she needed to get out of the relationship. Photographs showing the bruises were introduced into

evidence. Kennell denied that he touched Rogers and did not know how she got the marks.

               Soon thereafter, Rogers learned that a gun she kept for her safety was missing. She

testified that she was fearful for her life and went to a friend’s house to call police. Although she

told Kennell she was going to a friend’s house, she was trying to leave him and take the child.

Rogers testified that, because the child was sleeping, Kennell “told me he didn’t see a need for me

to take him with me.” Although the police arrived and searched the house for the gun, they were

unable to find it. The police assisted Rogers retrieving some things from her house. Claiming he

later found the gun, Kennell returned the gun to Rogers two days later. Rogers testified that Kennell

told her that “[t]he reason why he took the weapon is because he felt that the situation was getting

worse and he was going to take my weapon and sell it and use the money.” Kennell testified that he

did not think the weapon was ever missing and that he found the firearm underneath the bed and

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returned it to Rogers. Kennell testified that he was not aware the police ever searched the house

for the weapon. He explained that he got the gun and gave it to Rogers “[b]ecause she was making

a big deal of it. And I just wanted to show her that I’m not a threat to her. I don’t need her gun.”

               Rogers testified that she feared for her life when she was around Kennell and that

she feared that the violence would continue. Other witnesses testified that Rogers was scared and

fearful of Kennell and “not herself.” Another co-worker testified that he received a threatening text

message from Kennell. When he accompanied Rogers to her house to retrieve some of her things,

on one occasion the locks were changed and, on another occasion, Rogers was unable to get into the

house because the doors were blocked with a washing machine, a love seat, and a sofa. The co-

worker testified that when Rogers and the co-worker were eventually able to enter, Kennell “was

standing there with the recording camera recording the whole thing.” Two co-workers also testified

to an altercation that occurred when Kennell tried to leave a scheduled visitation with the child at

a McDonald’s restaurant. Although Kennell was permitted visitation, he was not permitted to leave

with the child. When he tried to do so, an altercation ensued and the police were called. During

another incident, Rogers called a co-worker for help when Kennell burst into her house, and she

was very nervous.

               Kennell testified, denying that he ever physically harmed Rogers. He also testified

that he continued to have contact with Rogers and that their interactions were amicable. Two

neighbors also testified on his behalf that they had never observed Kennell engage in any kind

of violence.




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               At the conclusion of the hearing, the trial court found that Kennell had committed

family violence and that family violence was likely to occur again in the future. The trial court made

the following findings:


       2.      In September 2007 while the parties were living in the home of the Applicant,
               Stephanie Monique Rogers, . . . the Respondent, Danny Lee Kennell, grabbed
               Applicant by her arm in the presence of their child and pushed Applicant up
               against the wall causing her to be afraid for her life.

       3.      As a result of the incident in September 2007, Applicant suffered a mark on
               her back, bruises on her left arm and two marks on the left part of her back.

       4.      In December 2006 Respondent locked the Applicant outside his parent’s
               home in Louisiana, hit her in the face two times, choked her and took the
               child and left the residence.

                                                ***

       8.      Respondent owns a 99 mm handgun with ammunition and had possession of
               them at the . . . residence.

       9.      In October 2007, Applicant’s handgun was missing from the residence and
               Respondent returned it to her several days later claiming that he had found it.

                                                ***

       14.     Respondent has communicated with Applicant’s chain of command
               unnecessarily and with the intent to harass the Applicant.


The trial court concluded that Kennell had committed family violence and that Kennell was likely

to commit family violence in the future. The trial court made the following conclusions of law:


       1.      Respondent has committed family violence against the Applicant in the
               immediate presence of the child the subject of this suit.




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       2.      The Respondent is likely to commit family violence on the Applicant in the
               future.

       3.      A protective order is necessary to prohibit the Respondent’s commission of
               family violence against the Applicant.


Following entry of a final order in the suit affecting parent-child relationship, Kennell appealed the

entry of the protective order.


                                          DISCUSSION

               When the trial court acts as a fact finder, we may review its findings under the

legal and factual sufficiency standards. In re Doe, 19 S.W.3d 249, 253 (Tex. 2000); B.C. v. Rhodes,

116 S.W.3d 878, 883-84 (Tex. App.—Austin 2003, no pet.). In conducting a factual sufficiency

review, we examine the entire record and consider and weigh all the evidence, both in support of,

and contrary to, the challenged finding. Golden Eagle Archery v. Jackson, 116 S.W.3d 757, 761-62

(Tex. 2003); Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); Cain v. Bain, 709 S.W.2d 175, 176

(Tex. 1986). We must uphold the finding unless the evidence that supports it is so weak as to render

the finding clearly wrong or manifestly unjust or the evidence to the contrary is so overwhelming that

the finding ought to be set aside and a new trial ordered. In re King’s Estate, 244 S.W.2d 660, 661

(Tex. 1951); Schaban-Maurer v. Maurer-Schaban, 238 S.W.3d 815, 823 (Tex. App.—Fort Worth

2007, no pet.). 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). We will not substitute our judgment for




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that of the trial court merely because we might reach a different conclusion. Maritime Overseas

Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998).

                A trial court shall render a protective order if, after a hearing, it finds that family

violence has occurred and is likely to occur in the future. Tex. Fam. Code Ann. §§ 81.001, 85.001

(West 2002). “Family violence,” as used in the trial court’s findings, includes “dating violence.”

See id. § 71.004(3) (West 2002). The family code defines dating violence as follows:


        “Dating violence” means an act by an individual that is against another individual
        with whom that person has or has had a dating relationship that is intended to result
        in physical harm, bodily injury, assault, or sexual assault or that is a threat that
        reasonably places the individual in fear of imminent physical harm, bodily injury,
        assault, or sexual assault, but does not include defensive measures to protect oneself.


Id. § 71.0021(a) (West 2002).

                In his first issue, Kennell contends that the evidence is factually insufficient to show

that he committed dating violence against Rogers in the past. Because Kennell (i) denied at the

hearing that any acts of violence occurred, and (ii) introduced evidence that he and Rogers continued

to have contact in person and by telephone, e-mail, and text messaging, Kennell contends that the

evidence is insufficient for the trial court to find that domestic violence occurred.

                Based on this record, we hold that the evidence was factually sufficient to support the

trial court’s granting of the protective order. The trial court, as fact finder, is the sole judge of the

credibility of the witnesses and the weight to be given their testimony. GTE Mobilnet, 61 S.W.3d

at 615-16. The trial court was entitled to believe Rogers’s testimony describing the physical harm

caused by Kennell as well as his threatening behavior and to disbelieve Kennell’s testimony denying



                                                   7
ever striking her. It was for the trial court alone to determine the credibility of the witnesses, and the

trial court could have disregarded Kennell’s denials in their entirety. See Nordstrom v. Nordstrom,

965 S.W.2d 575, 580-81 (Tex. App.—Houston [1st Dist.] 1997, pet. denied). The evidence

supporting the trial court’s finding that Kennell had committed dating violence is not so weak as to

render the finding clearly wrong or manifestly unjust. The trial court’s finding on this issue is

supported by factually sufficient evidence. We overrule Kennell’s first issue.

                In his second issue, Kennell contends that there is factually insufficient evidence to

show that he was likely to commit acts of dating violence in the future. We disagree.

                Kennell does not address this issue separately from his first issue, nor does he address

the likelihood of committing future acts of violence. Rogers testified that she was in fear of Kennell

and that she believed that the violence was likely to continue unless the judge granted a protective

order. The evidence supporting the trial court’s finding that Kennell would likely commit acts of

dating violence against Rogers in the future is not so weak as to render the finding clearly wrong or

manifestly unjust. The trial court’s finding on this issue is supported by factually sufficient evidence.

We overrule Kennell’s second issue.


                                           CONCLUSION

                Having overruled Kennell’s issues, we affirm the protective order of the trial court.




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                                          __________________________________________

                                          Jan P. Patterson, Justice

Before Justices Patterson, Waldrop and Henson

Affirmed

Filed: November 20, 2008




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