







COURT OF APPEALS








COURT
OF APPEALS
EIGHTH
DISTRICT OF TEXAS
EL
PASO, TEXAS
 
SAMUEL DOMINGUEZ, JR.,                             )
                                                                              )              
No.  08-05-00095-CV
Appellant,                          )
                                                                              )                    Appeal from the
v.                                                                           )
                                                                              )                 388th District Court
KEITH HUGHES, On Behalf Of
C.T.H.,               )
Minor Child,                                                          )            
of El Paso County, Texas
                                                                              )
Appellee.                           )               
(TC# 2003CM3036)
                                                                              )
 
 
O
P I N I O N
 
Samuel Dominguez,
Jr. appeals from the trial court=s
granting of a protective order which prohibits communication and contact with
his nephew, C.T.H.  In a single issue,
Appellant contends the evidence is legally and factually insufficient to
support the trial court=s
family violence finding and the granting of the protective order.  We affirm.




Keith Hughes is
the father of C.T.H.  On November 19,
2004, Mr. Hughes filed an application for a protective order on behalf of
C.T.H. against his maternal uncle, Appellant. 
The application alleged that Appellant had committed family violence
against C.T.H. on four separate occasions, specifically alleging that:  (1) on or about October 23, 2004, Appellant
grabbed C.T.H. around the neck causing a bruise; (2) on or about April 7, 2004,
Appellant assaulted C.T.H. causing bruises on his arms and legs; (3) on or
about January 7, 2004, Appellant held C.T.H. down by his arms and legs causing
bruises; and (4) on or about December 26, 2003, Appellant kicked C.T.H. on his
back causing a bruise.  After conducting
a hearing, the trial court granted a protective order against Appellant,
finding that family violence had occurred and was likely to occur again in the
future.  Appellant now appeals the trial
court=s order.
On October 27,
2004, Mr. Hughes picked up six-year-old C.T.H. after visitation with Lucy
Dominguez, C.T.H.=s
mother.  As they were walking out of the
visitation center, Mr. Hughes noticed that C.T.H. had a mark behind his
right ear.  Mr. Hughes asked C.T.H. about
the mark, but C.T.H. did not respond. 
Mr. Hughes asked C.T.H. about it several times, but C.T.H. would not
tell him anything.  The following day,
Lisa Bracken, C.T.H.=s
day care provider, noticed a purplish mark behind C.T.H.=s
right ear.  When Ms. Bracken took C.T.H.
aside and asked him about the mark, he started crying and was unable to
speak.  Ms. Bracken comforted him for a
little while, told him it was okay, and asked him to tell her who had hurt
him.  C.T.H. told her that AJunior@
had done it, referring to his uncle, Appellant. 
C.T.H. also showed her how Junior had placed his hand around his
neck.  Ms. Bracken asked him if he had
told his father, and C.T.H. replied that he had not because he did not want
Junior to get in trouble.  She asked if
it would be okay to tell his father, and C.T.H. said yes.  When Mr. Hughes came to pick up C.T.H., Ms.
Bracken told him what C.T.H. had told her. 
Mr. Hughes filed a police report the next day.




Joe Martinez, a
clinical director with the El Paso Child Guidance Center, met with C.T.H. for
an emergency therapy session on October 29. 
As C.T.H. entered the office, Mr. Martinez noticed a dime-sized mark
behind C.T.H.=s right
ear.  During the session, C.T.H. told
Mr. Martinez what had happened and showed Mr. Martinez how his uncle had
left the mark by putting his hand around C.T.H.=s
neck and throat, with the thumb to the right of the jawbone.  C.T.H. explained that the incident happened
while they were playing on the floor. 
His mother was present and his uncle stopped when his mother told him to
stop.  C.T.H. was concerned that his
uncle would get in trouble.  C.T.H.
consistently told Mr. Martinez the same version of events throughout the
counseling session.  Mr. Martinez had
concerns for C.T.H.=s safety
with respect to contact with Appellant based on a history of allegations of
bruising caused by Appellant.
Lucy Dominguez
testified that on October 27 her son, C.T.H., was visiting her and watching the
World Series with family members. 
Appellant visited for about twenty-five minutes.  Ms. Dominguez, her mother, Appellant, and
C.T.H. were in the living room watching the game.  Appellant was sitting on the floor and C.T.H.
was sitting next to his maternal grandmother on the couch.  Off and on, Appellant and C.T.H. were hugging
or holding each other.  At one point,
Appellant lifted C.T.H. up in the air and was tickling C.T.H. and making him
giggle.  C.T.H. did not cry out at any
point.  Ms. Dominguez asked Appellant to
stop these activities because she wanted Appellant to be careful with C.T.H.
and to have a nice quiet visit since he and C.T.H. had not seen each other in a
while.  Ms. Dominguez also asked
Appellant to stop because she was trying to watch the game.  Ms. Dominguez stated that her son was the
aggressor in the play conduct and that he had jumped on her brother.  Ms. Dominguez believed her son had lied to
Ms. Bracken.  She did not know how C.T.H.
got the mark behind his ear. 
Ms. Dominguez stated that Appellant did not grab C.T.H. by the neck
and that the only other contact that might have caused the bruise was when
Appellant lifted C.T.H. on his backside. 
According to Ms. Dominguez, Appellant did not do anything that was
intended to harm C.T.H.




With regard to
October 27, Appellant testified that while he was on the floor watching the
game, C.T.H. initiated the playing around, hugging, and rolling on him.  C.T.H. wanted Appellant to pick him up, so
Appellant picked him up twice, one time from front and then C.T.H. later came
back over and Appellant lifted him up again. 
C.T.H. then sat down and his sister told C.T.H. to quit it.  Appellant denied ever placing his hand on
C.T.H.=s neck
such that it would leave a thumb print behind his ear.  Appellant testified that there was some
animosity between him and Mr. Hughes. 
Appellant never intended to harm C.T.H. and did not bruise him that
evening.  Socorro Dominguez, Appellant=s mother, recalled that on October 27,
they were all watching the game when C.T.H. wanted to play with Appellant.  While they were playing, Appellant lifted
C.T.H. up and C.T.H. was laughing.  When
Appellant lifted him up in the air, he had one hand around C.T.H.=s neck and the other one below his
waist.
Isabel
Medina-Espinoza, a supervision monitor at the Child Crisis Center, testified
that on October 27, Mr. Hughes did not make any outcry about any injuries to
C.T.H. when he picked C.T.H. up at the visitation center.  No one at the center documented any new
injuries to C.T.H. on October 27.  On
cross-examination, Ms. Medina-Espinoza explained that when a child is brought
back after a visit, a staff member documents any visual marks on the face or
arms of the child.  They do not, however,
do a careful physical inspection of the child. 
She agreed that it was possible for a child to have an injury behind an
ear that went unnoticed.  When shown photographs
of C.T.H.=s neck,
Ms. Medina-Espinoza stated that she would not have seen the mark because she
did not get close to him.
In his sole issue,
Appellant challenges the legal and factual sufficiency of the evidence to
support the trial court=s
finding that family violence had occurred and was likely to occur in the
future.




Standard
of Review
In conducting our
review of the trial court=s
finding for legal and factual sufficiency in the family law context, we apply a
two-prong analysis:  (1) Did the trial
court have sufficient information upon which to exercise its discretion; and
(2) did the trial court err in its application of discretion?  Lindsey v. Lindsey, 965 S.W.2d 589,
592 (Tex.App.--El Paso 1998, no pet.). 
The traditional sufficiency of the evidence review, articulated below,
comes into play when considering the first question.  Id. 
We then proceed to determine whether, based on the elicited evidence,
the trial court made a reasonable decision or whether it is arbitrary and
unreasonable.  Id.
In considering the
legal insufficiency point, we consider the evidence that tends to support the
fact finder=s
findings and disregard evidence and inferences to the contrary.  Id. at 591.  If more than a scintilla of evidence exists
to support the questioned finding, the legal insufficiency point fails.  See id.; Tseo v. Midland Am. Bank,
893 S.W.2d 23, 25 (Tex.App.‑-El Paso 1994, writ denied).  In reviewing Appellant=s
factual sufficiency challenge, we examine all of the evidence in determining
whether the finding in question is so contrary to the overwhelming weight of
the evidence as to be clearly wrong and unjust. 
See Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); Cain v.
Bain, 709 S.W.2d 175, 176 (Tex. 1986). 
The trier of fact is the sole judge of the credibility of the witnesses
and the weight given to their testimony. 
GTE Mobilnet of South Texas Ltd. Partnership v. Pascouet, 61 S.W.3d
599, 615-16 (Tex.App.--Houston [14th Dist.] 2001, pet. denied). 
Protective
Order




A trial court
shall render a protective order if, after a hearing, it finds that family
violence has occurred and that family violence is likely to occur in the
future.  Tex.Fam.Code Ann. '' 81.001,
84.001, 85.001 (Vernon 2002).  AFamily violence@
in relevant part, is defined as:
(1)        an act by a member of a family or
household against another member of the family or household 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;
 
(2)        abuse, as that term is defined by
Sections 261.001(1(C), (E), and (G), by a member of a family or household
toward a child of the family or household . . . .
 
Id. at ' 71.004(1) & (2).
 
Section 261.001(1)(C) defines abuse
as:
[P]hysical injury that results in
substantial harm to the child, or the genuine threat of substantial harm from
physical injury to the child, including an injury that is at variance with the
history or explanation given and excluding an accident or reasonable discipline
by a parent, guardian, or managing or possessory conservator that does not
expose the child to a substantial risk of harm.
 
Tex.Fam.Code Ann.
' 261.001(1)(C)(Vernon Supp. 2005).
 




The evidence
presented at the hearing shows that on October 27, 2004, six-year-old C.T.H.
sustained a purplish dime-sized mark or bruise behind his right ear as a result
of physical contact with Appellant during a visit.  The injury was sustained during rough play between
the two, in which Appellant lifted C.T.H. up into the air from his backside by
grabbing C.T.H. by his neck and below his waist.  C.T.H.=s
father noticed the mark when he picked up C.T.H. at the visitation center.  The following day, C.T.H.=s care giver asked him who had hurt him
and C.T.H. in tears told her that it was AJunior,@ referring to Appellant.  The next day, C.T.H. met with counselor Joe
Martinez and told him what had happened and demonstrated how Appellant had
placed his hands around C.T.H.=s
neck and throat, which had left a thumb print mark behind his right ear. Mr.
Martinez testified that he was concerned about C.T.H.=s
safety with respect to further contact with Appellant because there was a
history of allegations of Appellant bruising C.T.H.  We conclude there was more than a scintilla
of evidence to support the trial court=s
family violence finding because the evidence shows that C.T.H. suffered a
physical injury that resulted in substantial harm during an incident of rough play
between the child and Appellant, which was part of a history of allegations of
bruising of the child by Appellant.
With regard to the
factual sufficiency challenge, Appellant points to evidence that C.T.H. is a
boisterous, lively child, that Appellant and C.T.H. were playing, that C.T.H.
did not complain of any pain or fear, or feel threatened, that Appellant did
not intend to hurt C.T.H., and that Mr. Hughes did not report the bruise upon
immediate discovery.  These facts,
however, are not contrary to the evidence supporting the trial court=s finding.  Witnesses agreed that C.T.H. is an active
child.  C.T.H. did not tell anyone that
he felt pain, fear, or threatened as result of the incident, but such evidence
is not required to support the trial court=s
implied finding of abuse.  Within
forty-eight hours, three witnesses observed the bruise on C.T.H.=s neck. 
While Appellant and C.T.H.=s
mother testified that Appellant never touched C.T.H.=s
neck, Socorro Dominguez testified that she was present during the incident and
observed Appellant lift C.T.H. into the air by the neck and waist.  In this case, the trial court clearly found
Appellant=s
testimony not credible and in addition considered the seriousness of the event
in light of a history of 




bruise-producing physical contact
between Appellant and C.T.H.  We conclude
that the evidence is both legally and factually sufficient to support the trial
court=s finding
that family violence had occurred and was likely to occur again in the
future.  The trial court=s decision to grant the protective
order was reasonable based on the evidence presented at the hearing.  Consequently, the trial court did not err in
granting the protective order.  Appellant=s sole issue for review is overruled.
For the reasons stated
above, we affirm the trial court=s
order.
 
 
 
April
13, 2006
DAVID WELLINGTON
CHEW, Justice
 
Before Barajas, C.J., McClure, and Chew, JJ.

