Opinion issued July 25, 2019




                                      In The

                               Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                               NO. 01-18-00730-CV
                            ———————————
                        BRIAN WILLIAMS, Appellant
                                        V.
                      SHAWNTAY WILLIAMS, Appellee



                    On Appeal from the 300th District Court
                           Brazoria County, Texas
                        Trial Court Case No. 96783-F


                        MEMORANDUM OPINION

      This is an appeal from a protective order granted by the trial court against

appellant, Brian Williams. In his first two issues, Brian challenges the legal and

factual sufficiency of the evidence supporting the granting of the protective order.
In his third issue, he contends that the trial court abused its discretion in denying his

motion for new trial. We affirm.

                                     Background

      Brian and appellee, Shawntay Williams, were in a relationship for twenty-

three years. They married in 2011. They have two daughters: Bresha who is fifteen

years old and Talaya who is twelve.

      At the protective order hearing, Shawntay testified that Brian had been

physically abusive to her throughout their relationship. In 1997 or 1998, Shawntay

and Brian were arguing when Brian hit her in the jaw and choked her. Shawntay

walked out of the house and called her aunt.

      Sometime in the early 2000s, Brian became upset while on the phone with

Shawntay and came home. When Shawntay did not let him in, he broke a window,

entered the house, and choked her. After Shawntay called the police, Brian was

arrested and served time in county jail. Shawntay testified that Brian drinks and

often becomes intoxicated, and she believes that he was intoxicated that evening.

      In 2015 or 2016, Brian became angry with Shawntay and choked her to the

point where she could not breathe. She ran to a neighbor’s house for help.

      In February 2016, Brian and Shawntay moved to Pearland with Bresha and

Talaya. On one occasion, Brian and Shawntay got into a heated argument during




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which Brian grabbed her shirt. The police were called and told them that one of

them should leave the house.

      On the night of October 13, 2017, Shawntay was asleep in the master bedroom

when Brian came home intoxicated. Shawntay testified that Brian asked her if she

wanted to eat and became upset when she answered no. When Shawntay told him

to “lay down” and “sleep it off,” he asked her if she was cheating on him. Shawntay

again told him to go to sleep and that nobody was cheating on him. Brian closed the

door, accused Shawntay of cheating, and told her that if he ever found out that she

was cheating, he would kill her and whoever she was with. Shawntay testified that

Brian then took a samurai sword from the corner of their bedroom, held it to her

neck, and told her, “I could kill you right now if I wanted to.” Brian told her that he

would find her if she ever left him and that she better not take his kids. Shawntay

testified that she was scared that he was going to hurt her. Brian then removed

Shawntay’s gun from the safe in their closet and, sitting behind her, cocked the gun

and pointed it at her head. In an effort to keep him calm, Shawntay told him to go

to bed. She then told Brian “[y]ou know that I’m afraid of you. I would never do

anything like that to you.” Brian then walked around the side of the bed and began

choking Shawntay. When he stopped choking her, she jumped up and ran to the

bedroom door. Brian blocked her exit, pushed her against the door, and tried to

choke her again.

                                          3
      Bresha heard the commotion and got in between her parents to separate them.

Shawntay testified that Bresha told Brian, “[y]ou’re hurting my mom.” Brian went

to the kitchen and asked the girls if they wanted something to eat. Shawntay called

the Pearland Police Department and two officers arrived. They took statements from

Shawntay, Brian, and Bresha, and Brian was arrested. Afterwards, Shawntay

obtained a thirty-one day emergency protective order. Shawntay moved out of their

Pearland home on October 28, 2017.

      During that time, Shawntay worked as a school bus driver with Pearland

Independent School District. She testified that, on one occasion, while Shawntay

was sitting in her car in the employee parking lot, Brian approached her and told her

to get out of the car so he could speak to her. When she refused, he beat on the

window several times and told her, “[o]kay. Watch. You will see. I’m going to kill

you, Bitch.” Shawntay called the police and Brian was arrested for violating the

emergency protective order. She also testified that Brian would stand on her bus

route and stare at her as she drove by. Brian also came to her place of work or her

new residence several more times to try to intimidate her. Brian also sent a text

message to Shawntay to let her know that he knew her apartment number, what side

of the building her apartment was located, and what was on her balcony. On another

occasion, Brian pulled up next to her while she was at a red light, made eye contact

with her, and gestured as if holding a gun. Shawntay also testified that Brian texted

                                         4
her, calling her a bitch and telling her that he would kill her, and said things such as

“If I go down, we all go down.”

      Shawntay left her job with Pearland ISD after she was diagnosed with severe

depression and had a nervous breakdown at work. She was unemployed at the time

of trial. Shawntay testified that she feared Brian would continue threatening her

without a protective order in place. She also testified that she wanted to divorce

Brian but was currently unable due to financial hardship.

      On cross-examination, Shawntay testified that, in 1997, she pulled a gun on

Brian because he was cheating on her and brought the other woman to their home.

      Bresha testified that, on the evening of October 13, 2017, she heard a

commotion coming from her parents’ room and her mom yelling, “get your hands

off of me.” She left her bedroom and went to her parents’ room where she saw her

father’s hands on her mother’s shirt. Bresha testified that her mother was in distress

and crying. Bresha jumped between them, pushed her father off of her mother, and

told her father that he was hurting her mother. Her mother went into the living room

and called the police while her father continued to walk through the house. Bresha

testified that her father has sent her mother threatening texts on many occasions,

stating that he would kill or hurt her. She also testified that her father becomes

aggressive when he is intoxicated. When her father saw a text message from one of




                                           5
her male classmates, he told her that she was “too young to know what love is” and

then whipped and choked her.

      Alan Roca, a Pearland Department police officer, was dispatched to Brian and

Shawntay’s home just after midnight on October 13, 2017. When Officer Roca

arrived, Brian was outside talking to an officer and Shawntay and Bresha were inside

the house. Shawntay told Officer Roca that she saw Brian get a gun but did not state

that he pointed it at her or mention a sword. Officer Roca testified that, based on

Shawntay’s and Bresha’s statements to police, as well as the fact that Shawntay’s

shirt was torn, Brian was charged with misdemeanor assault-family violence.

      Brian testified that, in 1997, he hit Shawntay in the jaw in self-defense because

Shawntay tried to shoot him because she believed that he was having an affair. He

testified that, in 2004, he broke a window of the apartment he shared with Shawntay

and was arrested and charged with burglary of a habitation1 and served three months

in county jail. He denied grabbing and choking Shawntay during that incident.

According to Brian, Shanwtay’s account of a later incident when he choked her and

she ran to a neighbor’s house did not happen. Brian also denied putting a sword to

Shawntay’s neck or pointing a gun at her head on October 13, 2017, following

Shawntay while she was working, or sending her threatening text messages.



1
      According to Brian, he was arrested and charged with burglary of a habitation
      because his name was not on the apartment lease.
                                          6
      On June 14, 2018, the trial court signed a final protective order. This appeal

followed.

                            Sufficiency of the Evidence

      In his first and second issues, Brian contends that the evidence is legally and

factually insufficient to support the trial court’s findings that family violence had

occurred and was likely to occur in the future.

   A. Standards of Review

      When the trial court acts as a factfinder, we review its findings under the legal

and factual sufficiency standards. In re Doe, 19 S.W.3d 249, 253 (Tex. 2000); Boyd

v. Palmore, 425 S.W.3d 425, 429 (Tex. App.—Houston [1st Dist.] 2011, 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 factfinder could not.

City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); City of Hous. 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 more than a mere scintilla of evidence exists, it is legally sufficient and

we will overrule that issue. Lozano v. Lozano, 52 S.W.3d 141, 145 (Tex. 2001);

Hildebrandt, 265 S.W.3d at 27. There is more than a scintilla of evidence if the

                                          7
evidence rises to a level that would enable reasonable and fair-minded people to

reach differing conclusions. Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778,

782–83 (Tex. 2001).

        In reviewing factual sufficiency, we examine the entire record in order to

consider and weigh all the evidence, both in support of, and contrary to, the

challenged finding. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); Boyd, 425

S.W.3d at 429. After considering and weighing all the evidence, we 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 substitute our opinion for that of the

trier of fact merely because we might reach a different conclusion. Boyd, 425

S.W.3d at 429. The trier of fact remains the sole judge of the credibility of the

witnesses and the weight to be given their testimony. Id. at 431.

      B. Applicable Law

        The Texas Family Code provides that a court shall enter a protective order if

it finds that family violence (1) has occurred and (2) is likely to occur in the future.

TEX. FAM. CODE §§ 81.001, 85.001. “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
                                           8
      sexual assault, but does not include defensive measures to protect
      oneself.

Id. § 71.004(1). “Family” is defined to include individuals who are spouses. Id.

§ 71.003. “The purpose of the protective order statute is not to remedy past wrongs

or punish prior criminal acts; rather, it seeks to protect the applicant and prevent

future violence.” Roper v. Jolliffe, 493 S.W.3d 624, 634–35 (Tex. App.—Dallas

2015, pet. denied). It is undisputed that Brian and Shawntay were spouses at the

time of the hearing.

      In addition to acts intending physical harm, threats that reasonably place the

victim in fear of imminent harm constitute family violence. See, e.g., Boyd, 425

S.W.3d at 430–31 (concluding that appellant committed act of family violence when

he blocked appellee’s car with his body and jumped on hood of car); Clements v.

Haskovec, 251 S.W.3d 79, 85–86 (Tex. App.—Corpus Christi 2008, no pet.)

(concluding that appellant committed act of family violence by raising his fist and

making other threats though he never actually struck family member). In cases

involving protective orders against family 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) (“The trial court reasonably could

have concluded that future violence is likely to occur based on the testimony

showing a pattern of violent behavior.”); In re Epperson, 213 S.W.3d 541, 543–44
                                          9
(Tex. App.—Texarkana 2007, no pet.) (concluding past and continuing pattern of

behavior showed applicant was reasonable in fearing respondent would commit acts

of “family violence” in future).

   C. Analysis

      The evidence, viewed in the light most favorable to the trial court’s finding,

shows that, on October 13, 2017, Brian arrived home intoxicated while Shawntay

was asleep. Brian went into the bedroom and repeatedly accused Shawntay of

cheating on him, telling her that if he found out that she was cheating on him, he

would kill her and whoever she was with. Brian held a samurai sword to Shawntay’s

neck and told her that he could kill her if he wanted to and then pointed a cocked

gun at her head. Afterwards, Brian began choking Shawntay to the point where she

could no longer breathe. When she tried to run out of the room, he blocked her exit,

pushed her against the door, and tried to choke her again. Shawntay testified that

she was scared that he was going to hurt her. Bresha heard the commotion and her

mom yell “get your hands off of me.” When she got to her parents’ room, Bresha

found her mother in distress and crying and saw her father’s hands on her mother’s

shirt. Bresha jumped between them, pushed her father off of her mother, and told

her father that he was hurting her mother. The October 13, 2017 incident, the

summoning of the police, Shawntay’s testimony about her fearfulness as well as

Bresha’s testimony about her mother’s distress, provide legally sufficient evidence

                                        10
supporting the trial court’s finding that Brian committed “an act . . . that [was] a

threat that reasonably placed [Shawntay] in fear of imminent physical harm, bodily

injury, [or] assault,” and thus satisfied the definition of “family violence.” See TEX.

FAM. CODE § 71.004(1).

      In support his contention that the evidence is legally and factually insufficient

to show that he committed an act that reasonably placed Shawntay in fear of

imminent harm, bodily injury or assault, Brian points to inconsistencies in the

witnesses’ testimony. He also asserts that it is inconceivable that he could have put

a sword to Shawntay’s neck and pointed a gun at her head yet she did not tell the

police or include this information in her written statement.

      As the factfinder, the trial court was the sole judge of the credibility of the

witnesses and the weight to be given their testimony. See Boyd, 425 S. W.3d at 431;

see also Pena v. Garza, 61 S.W.3d 529, 532 (Tex. App.—San Antonio 2001, no pet.)

(noting trial court is free to reject or accept all or part of witness’s testimony). Here,

the trial judge heard the witnesses testify during the hearing and was free to believe

Shawntay’s testimony regarding the abuse and disbelieve Brian’s efforts to discredit

that testimony, even without evidence corroborating every detail of Shawntay’s

account. See Boyd, 425 S.W.3d at 431 (holding trial court was free to place greater

weight on applicant’s testimony when making family violence finding). Moreover,

the fact that Shawntay did not tell police that Brian held a sword to her neck and

                                           11
pointed a gun to her head during the October 13, 2017 incident does not negate her

testimony that those events occurred. See Amir–Sharif v. Hawkins, 246 S.W.3d 267,

272 (Tex. App.—Dallas 2007, pet. dism’d w.o.j.) (rejecting contention that

protective order was erroneous because no documentary evidence was introduced

corroborating applicant’s testimony); see also Martin v. Martin, 545 S.W.3d 162,

167 (Tex. App.—El Paso 2017, no pet.) (concluding fact that ex-wife mentioned

additional incident in response to specific question does not negate her testimony

about two other events made basis of motion for protective order).

      Courts have also observed 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 at 544 (citing

In re T.L.S., 170 S.W.3d 164 (Tex. App.—Waco 2005, no pet.)). In addition to the

October 13, 2017 incident, Shawntay testified to three prior incidents when Brian

choked her during the course of their relationship. She also testified that on

numerous occasions Brian verbally threatened her, telling her that he would kill or

hurt her. After the October 2017 incident, Brian approached her several times and

threatened her, including beating on her car window on one occasion when she

refused to speak with him, and also texted her that he knew where she lived. Bresha

also testified that her father has sent her mother threatening texts on many occasions,

stating that he would kill or hurt her. See Kuzbary v. Kuzbary, No. 01-14-00457-

                                          12
CV, 2015 WL 1735493, at *5 (Tex. App.—Houston [1st Dist.] April 14, 2015, no

pet.) (mem. op.) (evidence supporting protective order included instances of physical

aggression occurring several years before application for protective order); Dempsey

v. Dempsey, 227 S.W.3d 771, 778 (Tex. App.—El Paso 2005, no pet.) (evidence

supporting protective order included actions by ex-husband five years before

application for protective order).

      The record before the trial court chronicled two decades of physical abuse. In

light of that history of abuse, Brian’s conduct on October 13, 2017, and his repeated

threats and intimidation of Shawntay following that incident, the trial court

reasonably could have concluded that Brian’s conduct constituted a threat that

reasonably placed Shawntay in fear of imminent physical harm, bodily injury, or

assault. This constitutes more than a scintilla of evidence that “family violence” had

occurred in the past. See TEX. FAM. CODE § 71.004(1); Boyd, 425 S.W.3d at 430

(holding evidence that respondent had engaged in threatening behavior, including

following applicant to her mother’s office, blocking her car, and jumping on her

car’s hood, was legally sufficient to support trial court’s finding of “family

violence”). Similarly, we conclude that there is evidence supporting the trial court’s

finding that Brian would likely commit family violence in the future. See Teel, 309

S.W.3d at 604 (“The trial court reasonably could have concluded that future violence

is likely to occur based on the testimony showing a pattern of violent behavior.”); In

                                         13
re Epperson, 213 S.W.3d at 543–44 (concluding past and continuing pattern of

behavior showed applicant was reasonable in fearing respondent would commit acts

of “family violence” in future).

      Nor is the evidence factually insufficient to support entry of the protective

order, particularly in view of the evidence establishing a pattern of similar conduct

in the past. Because the trier of fact is the sole judge of the credibility of the

witnesses and the weight to be given their testimony, see Boyd, 425 S.W.3d at 431,

the trial court was free to place greater weight on Shawntay’s testimony and to

conclude that Brian’s actions during the October 2017 incident placed Shawntay in

reasonable and imminent fear for her safety. Shawntay’s testimony that Brian

choked her and threatened her with weapons, and Bresha’s testimony that her mother

was crying and in distress when she came to her parents’ room, that her father was

holding her mother’s shirt, and that she feared that her father was going to hurt her

mother, was not so weak as to be clearly wrong or manifestly unjust and is therefore

factually sufficient. See id. We overrule Brian’s first and second issues.

                               Motion for New Trial

      In his third issue, Brian contends that the trial court abused its discretion in

denying his motion for new trial.

      A court has broad discretion to grant a motion for new trial and may do so

“for good cause.” TEX. R. CIV. P. 320; In re Columbia Med. Ctr. of Las Colinas,

                                          14
Subsidiary, L.P., 290 S.W.3d 204, 210 (Tex. 2009). The denial of a motion for new

trial is reviewed for abuse of discretion. Waffle House, Inc. v. Williams, 313 S.W.3d

796, 813 (Tex. 2010); Sozanski v. Plesh, 394 S.W.3d 601, 604 (Tex. App.—Houston

[1st Dist.] 2012, no pet.). A trial court abuses its discretion if it acts without

reference to any guiding rules or principles or fails to correctly analyze or apply the

law. Celestine v. Dep’t of Family & Protective Servs., 321 S.W.3d 222, 235 (Tex.

App.—Houston [1st Dist.] 2010, no pet.); Sozanski, 394 S.W.3d at 604.

      In his motion for new trial, Brian challenged the legal and factual sufficiency

of the evidence supporting the trial court’s finding that family violence occurred and

that it was likely to occur in the future. In particular, he argued that Shawntay’s

testimony that he violated the thirty-one day emergency protective order when he

appeared at her workplace was contradicted by an email dated November 4, 2017,

that she allegedly sent to him so that he could provide it to the trial court. The email

states that Brian came to her workplace to tell her that their older daughter was sick

and he needed the insurance card in Shawntay’s wallet. She further stated that “it

was all a big misunderstanding” and that she did not believe that he came to

intentionally harm her. Even if Shawntay sent this email to clarify the events of




                                          15
November 4, 2017, she testified that Brian came to her place of work and her new

residence on more than occasion to threaten and intimidate her.2

       The evidence in the record before us is legally and factually sufficient to

support the trial court’s finding of family violence. We conclude that the trial court

did not abuse its discretion in denying Brian’s motion for new trial. We overrule his

third issue.

                                     Conclusion

       We affirm the trial court’s protective order.




                                                       Russell Lloyd
                                                       Justice

Panel consists of Justices Lloyd, Kelly, and Hightower.




2
       The November 6, 2017 email, which was attached as an exhibit to his motion for
       new trial, was not offered as evidence at the June 14, 2018 hearing on Shawntay’s
       motion for protective order.
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