                                  MEMORANDUM OPINION
                                          No. 04-11-00516-CV

                                        Ramon K. FLANIGAN,
                                             Appellant

                                                    v.

                                          Anna GLASGOW,
                                              Appellee

                     From the 150th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2011-CI-04741
                       Honorable Barbara Hanson Nellermoe, Judge Presiding

Opinion by:       Phylis J. Speedlin, Justice

Sitting:          Catherine Stone, Chief Justice
                  Phylis J. Speedlin, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: August 1, 2012

AFFIRMED

           Ramon Flanigan challenges a protective order entered in favor of Anna Glasgow. We

affirm the judgment of the trial court.

                                                BACKGROUND

           Ramon and Anna dated for over seven years before ending their relationship on February

13, 2009. On March 26, 2009, a protective order was signed by a Denton County district judge

that prohibited Ramon from communicating directly with Anna in a threatening or harassing
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manner or from going within 200 yards of her residence. On March 22, 2011, Anna applied for a

second protective order against Ramon in Bexar County pursuant to section 82.008 1 of the

Family Code, alleging that Ramon violated the March 26, 2009 protective order or that Ramon

committed an act of family violence or dating violence against Anna. Attached to the application

was Anna’s affidavit detailing, among other actions, a threatening email sent to her by Ramon in

May 2009. Also attached to the application was a copy of the prior protective order signed on

March 26, 2009. Ramon received notice of Anna’s application for protective order on March 30,

2011.

          On April 27, 2011, a hearing was held on Anna’s application for protective order; the

application was prosecuted by the District Attorney’s Office on Anna’s behalf. Initially, the

State sought to nonsuit the application and proceed on a new application filed the day of the

hearing—this application was substantively the same as the March 22, 2011 application save for

the filing date. Ramon, however, objected to the lack of notice on the new application. The trial

court agreed that the State could not nonsuit the first application after announcing “ready” on the

day of the hearing, but acknowledged that because the application was filed four days before the

expiration of the prior protective order, the operative provision of the Family Code was section

82.0085, not 82.008. See TEX. FAM. CODE ANN. § 82.0085 (West 2008) (application filed before

expiration of previously rendered protective order); id. § 82.008 (West 2008) (application filed

after expiration of former protective order). The trial court thus denied the State’s motion to

nonsuit, and the hearing proceeded on the March 22, 2011 application.

          The only witness to testify was Anna. She stated that Ramon was physically abusive

towards her before their relationship ended in 2009, choking, punching, kicking, or slapping her

on occasion. When Anna finally told Ramon she was leaving him, he chased her in his car. The
1
    See TEX. FAM. CODE ANN. § 82.008 (West 2008)

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next day she filed for a protective order; it was granted on March 26, 2009 for a period of two

years. Anna testified that Ramon violated the protective order on May 11, 2009 when he came

within 200 yards of her residence. She stated that she called the police and a warrant was issued

for Ramon’s arrest. Anna was forced to move in with her mother and hide from Ramon. She

stated that she moved to Bexar County to keep Ramon from finding her. Anna testified that

Ramon sent her over 50 emails in the first two months of 2011 expressing a desire to reunite with

her. She admitted to calling him three times in the past two years. She called him twice at the

direction of a police detective who told her to clearly communicate to Ramon that she no longer

wanted contact from him; she called him for the same reason a third time of her own volition.

Anna stated that she is afraid of Ramon and that every day she comes home fearing he will be in

her apartment. Although Ramon moved to Mississippi, Anna continues to fear that he will find

her because he has family in Texas and comes to San Antonio often. Ramon once threatened to

shoot Anna in the head.

       At the conclusion of the hearing, the trial court granted the two-year protective order,

stating that “the stalking and the following and finding and recontacting after numerous clear

statements of no contact is in the nature of a harassment that can put one in a very uneasy

feeling.” In the order, the trial court found that Ramon “has committed family violence and

family violence is likely to occur in the future pursuant to Section 85.001 of the Texas Family

Code.” The trial court subsequently signed findings of fact and conclusions of law.

       Ramon now challenges the protective order, arguing in three issues that: (1) the evidence

presented at the hearing was legally insufficient to support the granting of the protective order;

(2) his due process rights were violated when the protective order was granted; and (3) the

application for protective order was fatally flawed.



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                                                  DISCUSSION

        We first address Ramon’s sufficiency challenge. A legal sufficiency challenge to a

family violence protective order, like any other legal sufficiency challenge, may be sustained

only when “(1) the record discloses a complete absence of evidence of a vital fact, (2) the court

is barred by rules of law or of evidence 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.” Wilkerson v. Wilkerson, 321

S.W.3d 110, 115-16 (Tex. App.—Houston [1st Dist.] 2010, pet. dism’d) (quoting Clements v.

Haskovec, 251 S.W.3d 79, 84 (Tex. App.—Corpus Christi 2008, no pet.)). In reviewing the legal

sufficiency of the evidence, a court must consider the evidence in the light most favorable to the

finding and indulge every reasonable inference that would support it. City of Keller v. Wilson,

168 S.W.3d 802, 822 (Tex. 2005). If the evidence allows only one inference, neither the trier of

fact nor the reviewing court may disregard it. Id. However, a reviewing court cannot substitute

its judgment for that of the trier of fact, so long as the evidence falls within the zone of

reasonable disagreement. Id. Moreover, the trier of fact is the sole judge of the credibility of the

witnesses and the weight to be given to their testimony. Id. at 819. We will not substitute our

judgment for that of the trial court merely because we might reach a different conclusion. Id.

        Under section 85.001 of the Texas Family Code, the trial court must grant a protective

order upon finding that family violence has occurred and is likely to occur again in the future.

TEX. FAM. CODE ANN. § 85.001(b) (West 2008). 2 In cases involving protective orders against


2
  Ramon argues that the trial court erred in granting the protective order under section 85.002, which requires a
finding of a violation of a prior protective order. See TEX. FAM. CODE. ANN. § 85.002 (West 2008). However,
because the trial court specifically issued a protective order pursuant to section 85.001, we will address the
requirements of a protective order under section 85.001. In any event, we reject Ramon’s argument that the
protective order was erroneously granted under section 85.002 because there was witness testimony establishing that
a prior protective order existed and that Ramon violated a provision of the order.

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family or dating violence, evidence that a person has engaged in abusive conduct in the past

permits an inference that the person will continue this behavior in the future. See Teel v.

Shifflett, 309 S.W.3d 597, 604 (Tex. App.—Houston [14th Dist.] 2010, pet. denied).

“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.” Id. (quoting In re

Epperson, 213 S.W.3d 541, 544 (Tex. App.—Texarkana 2007, no pet.)).

       Here, the trial court heard testimony that Ramon physically abused Anna, causing her to

first seek a protective order in 2009. Ramon then violated that protective order when he came

within 200 yards of her home. Anna also testified that Ramon sent her hundreds of unwanted

emails during the past two years, including one stating that she had no idea what kind of hell she

would endure for the rest of her life. He also told Anna’s friend that he was going to shoot her

when the protective order expired. Anna stated that she has had to move to two different cities to

avoid Ramon and that she has changed her contact information as well as her job on several

occasions. She constantly fears Ramon will find her and that he will be waiting for her in her

apartment when she comes home.

       In view of the entire record, we conclude that there was more than a scintilla of evidence

to support the trial court’s finding that family violence had occurred and was likely to occur in

the future and that the evidence supporting the finding was not so weak or contrary to the

overwhelming weight of all the evidence that the finding should be set aside. Anna testified that

Ramon committed dating violence in the past and that he refused to leave her alone even after

she made clear that the relationship was over. As fact finder, the trial court was free to accept or

reject the testimony of any witness, in whole or in part. See Wright v. Wright, 699 S.W.2d 620,

621 (Tex. App.—San Antonio 1985, writ ref’d n.r.e.); Nordstrom v. Nordstrom, 965 S.W.2d 575,



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580-81 (Tex. App.—Houston [1st Dist.] 1997, pet. denied). The trial could have found Anna

credible and weighed her testimony in favor of needing a protective order. We therefore hold

that the evidence was legally sufficient and overrule Ramon’s issue challenging the evidentiary

sufficiency.

       In his second issue, Ramon asserts that his due process right to notice was violated by the

granting of the protective order under section 85.001. See TEX. FAM. CODE ANN. § 85.001 (West

2008) (required findings and orders). We disagree. It is clear from the record that the trial court

proceeded on the March 22, 2011 application for protective order. Ramon received notice of the

application on March 30, 2011—twenty-eight days before the hearing. The application alleged

that Ramon violated the prior protective order or committed an act or acts of family violence or

dating violence against Anna. The application included Anna’s affidavit, which detailed the 52

emails Ramon sent to her in the first two months of 2011 alone. As such, Ramon was on notice

that the trial court would consider his acts of dating violence. We conclude the application gave

Ramon fair and adequate notice of the claims being asserted. See SmithKline Beecham Corp. v.

Doe, 903 S.W.2d 347, 354-55 (Tex. 1995); Teel, 309 S.W.3d at 602. Ramon’s second issue is

therefore overruled.

       Finally, Ramon argues that the application for protective order was fatally flawed under

section 82.0085 because it did not include a copy of the prior alleged protective order or a

description of the threatened harm that reasonably placed Anna in fear of imminent physical

harm, bodily injury, assault, or sexual assault. Again, we respectfully disagree. The application

filed on March 22, 2011 did in fact include a copy of the prior protective order from Denton

County.   Further, it included Anna’s affidavit detailing Ramon’s actions that cause her to

continually live in fear that he will find her and commit more dating violence against her.



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Accordingly, the application did meet the requirements of section 82.0085. Ramon’s third issue

is overruled.

                                         CONCLUSION

        Based on the foregoing, Ramon’s issues on appeal are overruled, and the judgment of the

trial court is affirmed.

                                               Phylis J. Speedlin, Justice




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