Opinion issued August 28, 2018




                                    In The

                             Court of Appeals
                                   For The

                        First District of Texas
                           ————————————
                            NO. 01-17-00371-CV
                          ———————————
                  GREGORIO MALDONADO, Appellant
                                      V.
                       ANGELA BEARDEN, Appellee


                  On Appeal from the 306th District Court
                         Galveston County, Texas
                     Trial Court Case No. 16-FD-3249


                        MEMORANDUM OPINION

      Appellant, Gregorio Maldonado, challenges the trial court’s issuance of a

protective order prohibiting him from, among other things, committing family

violence against, communicating with, threatening, or going within two hundred

feet of appellee, Angela Bearden. In two issues, Maldonado contends that the
evidence is legally insufficient to support the trial court’s issuance of the protective

order and the trial court erred in admitting into evidence police reports containing

narratives of Bearden’s accusations against him.

      We vacate the protective order.

                                     Background

      On November 7, 2016, Bearden filed an application for a protective order

against Maldonado, alleging that he had “engaged in conduct that constitutes

family violence” and “committed acts that were intended . . . to result in physical

harm, bodily injury, assault, or sexual assault, or were threats that reasonably

placed [Bearden] in fear of” the same. She argued that she was entitled to a

protective order because Maldonado had “violated a previously rendered protective

order by committing an act prohibited by that order” while it was in effect and

before it had expired. Specifically, she alleged that the prior protective order was

“violated . . . in the following manner”:

      During the two year duration of this Protective Order, [Maldonado]
      has been arrested and charged four (4) times for violations of the
      Agreed Protective [O]rder. See cause No. MD-0347785, 14CR2576,
      14CR3314 and 15CR1092.             [Maldonado] pled guilty to
      . . . ATTEMPTED       VIOLATION        OF      A    PROTECTIVE
      ORDER . . . AS     REDUCED         FROM        VIOLATION/BOND
      PROTECTIVE ORDER 2+ TIMES WITHIN 12 MONTHS.

She also alleged that she has not obtained any other order protecting her due to

Maldonado’s “violations” of the prior protective order.


                                            2
      Bearden attached to her application the parties’ Agreed Final Decree of

Divorce and her affidavit.     In her affidavit, Bearden testified that she was

requesting the new protective order against Maldonado as a result of his “physical

and verbal abuse” against her. She detailed his violations of the prior protective

order, stating that he had attempted to communicate with her by phone, made

airline reservations in her name, and messaged her through a dating website. And

she noted that Maldonado has continued to contact and threaten her since the prior

protective order expired, including by showing up to her apartment complex and

placing an advertisement for “sex acts that included a picture of [Bearden’s] face

and other pictures of naked bodies” on the website Craig’s List.

      Bearden also attached to her application the prior protective order agreed to

by the parties on May 21, 2014, and in which Maldonado specifically disclaimed

admission to any “civil or criminal liability.” Indicating their agreement, the

parties initialed an alteration crossing out language of a proposed finding that

“family violence has occurred and that family violence is likely to occur in the

future.” However, the trial court found “good cause” to prohibit Maldonado “from

communicating with [Bearden] or any member of [her] family or household,

except through [his] attorney.” And it concluded that the protective order was “for

the safety and welfare and in the best interest of [Bearden] and other members of

the family or household and [is] necessary for the prevention of family violence.”


                                         3
      In the prior protective order, which expired on May 21, 2016, the trial court

also decreed that Maldonado was:

      1.    Prohibited from committing family violence as defined in
            section 71.004 of the Texas Family Code.

      2.    Prohibited from communicating directly with [Bearden] or any
            member of [her] family or household in a threatening or
            harassing manner.

      3.    Prohibited from communicating a threat through any person to
            [Bearden] or any member of [her] family or household.

      4.    On a finding of good cause, prohibited from communicating in
            any manner with [Bearden] or any member of [her] family or
            household except through [his] attorney.

      5.    Prohibited from engaging in conduct directed specifically
            toward [Bearden] or any member of [her] family or household
            that is reasonably likely to harass, annoy, alarm, abuse, torment,
            or embarrass [Bearden] or any member of [her] family or
            household, including following [Bearden] or any member of
            [her] family or household.

      6.    Prohibited from going to, near, or within (200) two hundred
            yards of any location where [Bearden] or any member of [her]
            family or household is known by [him] to be and from
            remaining within (200) two hundred yards of said location after
            [he] becomes aware of said person’s presence.

      7.    Prohibited from going to, near, or within (200) two hundred
            yards of the residences of [Bearden] or any member of [her]
            family or household. Specifically, [he] is prohibited from going
            to, near, or within (200) two hundred yards of . . . [Bearden’s
            residence], and specifically must maintain a distance of at least
            (200) two hundred yards therefrom.

      8.    Prohibited from going to, near, or within (200) two hundred
            yards of the place of employment or business of [Bearden] or
            any member of [her] family or household. Specifically, [he] is
                                         4
             prohibited from going to, near, or within (200) two hundred
             yards of the place of employment or business of [Bearden] or
             any member of [her] family or household, and specifically must
             maintain a distance of at least (200) two hundred yards
             therefrom.

      9.     Prohibited from possessing a firearm or ammunition unless [he]
             is a peace officer, as defined by section 1.07 of the Texas Penal
             Code, actively engaged in employment as a sworn, full-time
             paid employee of a state agency or political subdivision.

      10.    Prohibited from removing a pet, animal companion, or
             assistance animal, as defined by Section 121.002 of the Human
             Resources Code from the possession of [Bearden] or any
             member of [her] family or household.

Additionally, the prior protective order suspended Maldonado’s license to carry a

concealed handgun and required him to “complete a battering intervention and

prevention program.”

      An associate judge of the trial court granted Bearden’s application for the

new protective order on November 22, 2016. After Maldonado filed a request for

a trial de novo before the presiding judge, the trial court held a trial de novo on

April 12, 2017.

      During the trial de novo, Bearden testified that she and Maldonado had only

lived together as a married couple for approximately one month, but they had been

together for much longer and he had been violent with her throughout the course of

their relationship.   According to Bearden, Maldonado had violated the prior

protective order “[a] lot.” He called her repeatedly in June 2014. And in July


                                         5
2014, he made airline reservations for a trip for the two of them on “what would

have been” their anniversary, and he sent her e-mail messages about the trip.

Maldonado also telephoned Bearden repeatedly in October 2014. And in April

2015, he, through a dating website, sent her messages identifying himself and

making “threats and rants” that were “very frightening.” Specifically, Maldonado

threatened to telephone his best friend’s brother, who is a “shot caller,” i.e., “the

person . . . in a gang that decides who is going to get . . . killed.”

      Bearden further testified that she reported the above incidents separately to

the Friendswood Police Department (“FPD”), resulting in Maldonado’s arrest,

criminal charges, and an indictment, which were consolidated into Cause Number

14-CR-2576. And the trial court admitted into evidence the police reports that

Bearden had filed with the FPD over Maldonado’s objections that they were not

relevant and “contained . . . hearsay.” In overruling his objections, the trial court

noted that Bearden had already testified to the matters contained in the police

reports.

      Bearden explained that since the prior protective order expired, she changed

her phone number and moved. However, Maldonado has continued to harass and

contact her. For example, Maldonado posted on the website Craig’s List lewd

photographs of Bearden along with her phone number in an advertisement for “sex




                                            6
acts.”1 Although he did not identify himself on the website by name, Bearden

“knew” he had listed the posting because at the end of the advertisement he wrote

“Coogs won,” referring to a recent University of Houston football game that

Bearden had attended with her son and friends and from which they had left early.

       Maldonado testified that he pleaded guilty to the charge of “[a]ttempted

violation of a protective order” and is “fully compliant” with his order for

community supervision. He noted that he agreed to the prior protective order on

the advice of counsel, not because he was a danger or threat to Bearden.

Regardless, he explained that he had never violated the prior protective order.

However, he did acknowledge that the police reports filed by Bearden with the

FPD resulted in his arrest and an indictment for violating the prior protective order.

       After hearing the evidence and arguments of the parties, the trial court

granted Bearden’s application and entered a new protective order, dated April 21,

2017, that is nearly identical to the prior protective order. Upon Maldonado’s

request, the trial court entered the following findings of fact and conclusions of

law:




1
       Although she did not mention a date for this incident during her testimony,
       Bearden, in her affidavit attached to the application for the new protective order,
       testified that this incident occurred “[o]n or about September 16, 2016.” Her
       affidavit also referenced incidents that occurred in July 2016 and November 2016
       in which Maldonado contacted her, causing her to feel threatened.
                                            7
                               I.
                        Findings of Fact

A.   On May 21st, 2014, in Cause No. 14-FD-1110, Applicant
     Angela Bearden’s Protective Order was entered against
     Respondent, Gregorio Maldonado.

B.   Respondent, Gregorio Maldonado, was arrested and charged on
     August 7, 2014 with violating a Protective Order in Case
     Number MD-0347785.

C.   Respondent, Gregorio Maldonado, was arrested and Indicted on
     August 19, 2014 with Violating a Protective Order 2+ Times
     within 12 months, in Case Number 14-CR-2576.

D.   Respondent, Gregorio Maldonado, was arrested and charged on
     November 5, 2014 with Violating a Protective Order 2+ Times
     within 12 months, in Case Number 14-CR-3314.

E.   Said Charge was included in Case Number 14-CR-2576.

F.   Respondent, Gregorio Maldonado, was arrested and charged on
     April 30, 2015 with Violating a Protective Order 2+ Times
     within 12 months, in case number 15-CR-1092.

G.   Said charge was included in Case Number 14-CR-2576.

H.   The Protective [O]rder dated May 21, 2014 expired on May 21,
     2016.

I.   On August 5, 2016, Respondent, Gregorio Maldonado, pled
     Guilty in Case Number 14-CR-2576 to Attempted Violation
     Protective Order as Reduced from Violation of Protective Order
     2+ Times within 12 months.

J.   Applicant, Angela Bearden, applied for a second Protective
     Order, which was granted by Associate Judge Stephen Baker on
     November 22, 2016.

K.   Respondent, Gregorio Maldonado, filed a Request for De Novo
     Hearing in front of the Presiding Judge.

                                8
      L.    Respondent, Gregorio Maldonado’s Request for Trial De Novo
            stated that the issues were: 1) a finding of family violence has
            occurred; 2) a finding that family violence is likely to occur in
            the future; and 3) a finding that protective orders are for the
            safety and welfare and in the best interest of the Applicant.

                                         II.
                                 Conclusions of Law

      A.    Texas Family Code Section 85.002 provides an exception to the
            required “Family Violence Finding” in instances where the
            Court finds that: 1) a respondent violated a protective order by
            committing an act prohibited by the order; 2) that the order was
            in effect at the time of the violation; and 3) that the order has
            expired after the date that the violation occurred.

      B.    Applicant provided sufficient evidence to show the Court that
            Respondent violated Applicant’s previous Protective Order
            while it was in effect and before it expired, therefore issuance
            of a new Protective Order was legal and correct.

      Arguing that “the evidence is legally and factually insufficient to

support . . . [the] judgment,” Maldonado filed a motion for new trial, which was

overruled by operation of law.

                                 Standard of Review

      We review the trial court’s findings of fact for legal and factual sufficiency

using the same standards we apply in reviewing the evidentiary sufficiency of the

jury findings. Gonyea v. Scott, 541 S.W.3d 238, 244 (Tex. App.—Houston [1st

Dist.] 2017, pet. denied). When, as here, an appellant attacks the legal sufficiency

of an adverse finding on an issue on which he did not have the burden of proof, he

must demonstrate that no evidence supports the finding.       See Exxon Corp. v.

                                         9
Emerald Oil & Gas Co., 348 S.W.3d 194, 215 (Tex. 2011). We will sustain a

legal-sufficiency or “no-evidence” challenge if the record shows one of the

following: (1) a complete absence of evidence of a vital fact; (2) rules of law or

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 scintilla;

or (4) the evidence establishes conclusively the opposite of the vital fact. City of

Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005).

                                Finding of a Violation

       In his first issue, Maldonado argues that the evidence is legally insufficient

to support the trial court’s issuance of the new protective order because none of its

findings of fact support its legal conclusion that Maldonado actually violated the

prior protective order while it was in effect.

       Typically, to enter a protective order, a trial court must find that “family

violence has occurred” and is “likely to occur in the future.” TEX. FAM. CODE

ANN. § 85.001(a) (Vernon 2014).             However, there is an exception to the

requirement of this finding when, among other things, “the court finds that a

respondent violated a protective order by committing an act prohibited by the

order . . . , that the order was in effect at the time of the violation, and that the order

has expired after the date that the violation occurred.” Id. § 85.002 (Vernon 2014).




                                            10
      In this case, the trial court entered the new protective order without a finding

that “family violence has occurred” and is “likely to occur in the future.” Instead,

in entering the new protective order, it relied on the legal conclusion that Bearden

“provided sufficient evidence to show the Court that [Maldonado] violated [her]

previous Protective Order while it was in effect and before it expired . . . .”

However, despite the evidence in the record, there are no findings of fact that

support the necessary conclusion that Maldonado actually committed an act

prohibited in the prior protective order.     Rather, the findings of fact merely

reiterate facts that are undisputed and matters of public record such as

Maldonado’s history of arrests, his indictment for violation of the prior protective

order, his guilty plea for attempted violation of the prior protective order, and the

order deferring adjudication of his guilt—none of which establish an actual

violation.

      Texas Rule of Civil Procedure 299 governs whether we may presume

omitted findings of fact to support a judgment. Specifically, rule 299 provides:

      When findings of fact are filed by the trial court they shall form the
      basis of the judgment upon all grounds of recovery and of defense
      embraced therein. The judgment may not be supported upon appeal by
      a presumed finding upon any ground of recovery or defense, no
      element of which has been included in the findings of fact; but when
      one or more elements thereof have been found by the trial court,
      omitted unrequested elements, when supported by evidence, will be
      supplied by presumption in support of the judgment. Refusal of the
      court to make a finding requested shall be reviewable on appeal.


                                         11
TEX. R. CIV. P. 299. Thus, we may only presume findings of fact in favor of the

judgment when “one or more elements” of a ground of recovery “has been found

by the trial court.” Id.; see also Nguyen v. Nguyen, 355 S.W.3d 82, 92–93 (Tex.

App.—Houston [1st Dist.] 2011, pet. denied) (“Because the trial court’s express

findings state only that Lan and Dinh never informally married because of the

impediment [to their marriage], and do not state that Lan failed to establish any of

the statutory elements of an informal marriage, the trial court’s express findings

regarding the impediment cannot be extended by implication to cover these

independent issuable facts.”).

      Although there is evidence in the record that could support the trial court’s

conclusion of law that Maldonado violated the prior protective order, it issued no

finding of fact to support that conclusion. The facts of Maldonado’s arrests,

criminal charges, and indictment for violation of the prior protective order do not,

in and of themselves, constitute proof that he actually violated the order. And

Maldonado’s guilty plea to the offense of attempted violation of the prior

protective order similarly does not constitute proof of any violation. A guilty plea

does serve as a full and fair litigation of the facts necessary to establish the

elements of a crime. Johnston v. Am. Med. Int’l, 36 S.W.3d 572, 576 (Tex. App.—

Tyler 2000, pet. denied) (quoting State Farm Fire & Cas. Co. v. Fullerton, 118

F.3d 374, 378 (5th Cir. 1997)). However, criminal attempt, by its own definition,


                                        12
would only establish that Maldonado attempted, but “fail[ed] to effect the

commission of the offense” of violation of a protective order. See TEX. PENAL

CODE ANN. § 15.01(a) (Vernon 2011) (emphasis added) (“A person commits an

offense [of criminal attempt] if, with specific intent to commit an offense, he does

an act amounting to more than mere preparation that tends but fails to effect the

commission of the offense intended.”). In other words, Maldonado’s guilty plea

only establishes that he tried to, but did not actually, violate the prior protective

order.2 Thus, no element of the recovery sought by Bearden (i.e., a violation of the

prior protective order) was included in the trial court’s findings of fact, and we

may not presume any such findings in support of issuance of the protective order.

See TEX. R. CIV. P. 299.

      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 new protective order.

      We sustain Maldonado’s first issue. Having sustained Maldonado’s first

issue, we do not need to reach his second issue in which he contends that the trial



2
      Having held that Maldonado’s guilty plea to the offense of attempted violation of
      the prior protective order is insufficient to support the conclusion that he actually
      violated the prior protective order, we do not reach the other portion of his first
      issue in which he argues that his guilty plea has no preclusive effect because he
      received an order for deferred adjudication of his guilt and the matter was not
      actually litigated. See TEX. R. APP. P. 47.1.
                                           13
court erred in admitting “several police reports” made by Bearden to FPD over his

hearsay objections. See TEX. R. CIV. P. 47.1.

                                    Conclusion

      Although there is evidence in the record to support the trial court’s

conclusion of law that Maldonado violated the prior protective order, our review of

the evidence in this case is limited, pursuant to Texas Rule of Civil Procedure 299,

to the findings of fact issued by the trial court. And the trial court issued no

finding of fact regarding Bearden’s claim that Maldonado actually committed a

violation of the prior protective order. We vacate the trial court’s protective order

dated April 21, 20173 and dismiss the case.




                                               Terry Jennings
                                               Justice

Panel consists of Chief Justice Radack and Justices Jennings and Lloyd.




3
      We note that nothing in this opinion prevents Bearden from seeking further relief
      in the form of a new protective order in the trial court.
                                          14
