Affirmed and Memorandum Opinion filed December 14, 2017.




                                        In The

                     Fourteenth Court of Appeals

                                NO. 14-16-00513-CV

               HUMBERTO FABIAN CABALLERO, Appellant
                                          V.
                 MARIA CHRISTIAN CABALLERO, Appellee

                    On Appeal from the 280th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2016-15733

                   MEMORANDUM OPINION


      Appellee Maria Christian Caballero applied for a protective order against her
former husband, appellant Humberto Fabian Caballero. After a hearing in which
both Maria and appellant testified, the trial court granted Maria’s application, issuing
a two-year final protective order. Appellant challenges the trial court’s order in three
issues.

      In his first issue, appellant asserts that the final protective order infringes on
certain constitutionally protected rights, and thus the applicant should be required to
meet a burden of proof higher than preponderance of the evidence. We overrule this
issue because the burden of proof by a preponderance of the evidence adequately
protects appellant’s parental rights. Appellant argues in his second issue that he
received inadequate notice of the hearing on Maria’s request for a protective order.
We overrule this issue because appellant failed to preserve it for appellate review by
first raising it in the trial court. Finally, in his third issue, appellant 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. Having reviewed
the record, we conclude the evidence is sufficient and overrule this issue. We
therefore affirm the trial court’s order.

                                      BACKGROUND

       Maria testified that she met appellant in February 2012. They married in
November 2012 and divorced in January 2013. They had no children together.
According to Maria, they attempted a reconciliation several months later, but it was
unsuccessful. They then had an on-and-off relationship that finally ended in June
2015. Appellant was subsequently warned by the management of Maria’s apartment
complex against trespassing on the property. Because of her interactions with
appellant at her apartment complex, Maria moved in with her daughter for a time in
October or November 2015. Despite moving, Maria discovered that appellant
followed her places and showed up at her place of work.

       In December 2015, appellant came to Maria’s apartment in the early morning
hours and banged on her door. Appellant later confronted Maria in the parking lot
of her apartment complex and demanded to know if she was dating a man who drove
a black truck.

       Appellant confronted Maria again on New Year’s Day of 2016. This incident
                                             2
occurred when Maria pulled her car into a restaurant parking lot. Maria’s boyfriend
was with her in the car. Appellant pulled up behind Maria’s car. Appellant then
approached Maria’s car and banged on her window while screaming at her. Maria
quickly drove away from the restaurant. Appellant then approached a friend of
Maria’s boyfriend, who was still at the restaurant, and demanded that he tell
appellant the name of Maria’s boyfriend.

      Later that same day, Maria went to her daughter’s home. While she was still
there, appellant drove up in front of the house and started screaming at her.
Appellant told Maria that she should have informed him that she had a new
boyfriend. Appellant left when Maria threatened to call the police. During this same
period, appellant made phone calls to members of Maria’s family telling them that
he believed she was a drug addict and a prostitute.

      Maria testified that appellant called Children’s Protective Services, telling
them that she was unfit to be around her grandson. According to Maria, CPS
required that she move out of her daughter’s home. Maria testified that she had to
move into a hotel because she could not return to her own apartment given that
appellant knew the location and had stalked her there.

      In another incident, appellant blocked Maria’s car with his truck while she
was at a local gas station. Appellant screamed at Maria, once again accusing her of
being a prostitute and drug addict. Maria felt threatened because she did not know
what appellant would do. Maria tried to leave the station, but her vehicle was
blocked by appellant’s truck, so she notified the police. The police reviewed the gas
station’s surveillance video and warned appellant to leave Maria alone.

      In other incidents, appellant again followed Maria to the same gas station.
Appellant also followed her into a resale shop. Maria explained that this incident
alarmed her because the only way he could have found her in the store was to follow
                                           3
her from her workplace. Appellant asked Maria to move back in with him. Maria
testified that appellant follows her constantly and she “can’t go anywhere without
him showing up.”

         Finally, in an incident that occurred about three weeks before the hearing,
appellant followed Maria and her boyfriend when they left Maria’s daughter’s home.
Appellant was driving a rental car. Appellant approached so close that he almost hit
the rear of Maria’s car. Maria tried to get away from appellant but had to stop at a
red light. Appellant then got out of his car, walked up to Maria’s car while it was
stopped at the red light, and started banging on her window and screaming at her.
Upset, Maria drove away in traffic and ultimately flagged down a deputy constable.

         Following that incident, appellant continued to email Maria numerous times.
Maria did not respond to those emails. Maria testified that she believes appellant,
who disregarded police warnings to leave her alone, would continue to engage in
this type of conduct and she feared that his behavior would escalate to the point
where he would injure her physically.

         Maria also testified that appellant had physically assaulted her twice. One
assault occurred in 2014 when Maria was packing her boxes to leave their apartment.
Appellant would not let her leave, pushing her into the kitchen wall and holding her
there. Maria called the police about that incident. In the second incident, appellant
slammed Maria between the door and the doorframe when she tried to leave the
apartment. Maria testified that appellant owns firearms and she feared that he would
use them to harm her. Finally, Maria testified that appellant has been diagnosed as
bipolar, has been confined in a mental hospital, and has threatened suicide numerous
times.

         Appellant also testified during the hearing.    He denied all of Maria’s
allegations of stalking and assault, denied contacting CPS, and contended he had
                                          4
filed for divorce due to Maria’s bizarre and bipolar behavior.         Appellant did
acknowledge running into Maria at the restaurant, at the gas station (twice), and at
the resale shop. He contended each encounter was a coincidence. Appellant also
denied having any mental health issues and denied having ever threatened to commit
suicide. Appellant admitted that he owns firearms. Finally, appellant admitted that
he has continued to send emails to Maria. Appellant explained that Maria had never
communicated to him that she did not want him to contact her.

      Appellant offered four emails into evidence that he received from Maria.
They were sent on August 2, 2015, September 1, 2015, December 29, 2015, and
January 1, 2016. Appellant notes that the earlier emails contain expressions of
intimate feelings by Maria concerning their relationship, and he contends that the
later emails demonstrate continued friendly contact.

      Maria also testified regarding each email. She indicated that the August email
was a “break up” email in which she stated that while they had a special bond, even
a friendship would be difficult because of their history.       Maria said that the
September email was her attempt to get her furniture and other items from his
apartment, but appellant did not show up. Maria sent the December email because
appellant was continually texting her daughter, and she hoped that her message,
“Hope you had a good x mas,” would stop him and convince him to move on with
his life. Maria sent the January 1 email, several hours after the restaurant incident,
at the request of the police because they wanted appellant’s cell phone number.

      At the conclusion of the hearing, the trial court ruled on the record that the
evidence preponderated in support of a finding of family violence and the likelihood
of future violence. The trial court found good cause for a no-contact protective
order. The court ordered that appellant not possess a firearm. The trial court signed
a written order in which it found that appellant and Maria were from the same family,

                                          5
household, or had a previous dating relationship. It then found that family violence
had occurred and would likely occur in the future. The trial court also found that a
protective order was necessary for the safety, welfare, and best interest of Maria, and
was necessary to prevent family violence. This appeal followed. Tex. Fam. Code
Ann. § 81.009 (West 2014).

                                      ANALYSIS
I.    The evidence is legally and factually sufficient to support the trial court’s
      issuance of a protective order.
      In his third issue, appellant argues that the evidence is legally and factually
insufficient to support the trial court’s issuance of a protective order. Because it
offers the greatest potential relief if successful, we address this issue first. CMH
Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000).

      A.     Standard of review and applicable law

      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); St.
Germain v. St. Germain, No. 14-14-00341-CV, 2015 WL 4930588, at *2–3 (Tex.
App.—Houston [14th Dist.] Aug. 18, 2015, no pet.) (mem. op.).

      In a legal sufficiency challenge, we view the evidence in the light most
favorable to the judgment and indulge every reasonable inference that would support
it. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). We must credit
favorable evidence if a reasonable factfinder could and disregard contrary evidence
unless a reasonable factfinder could not. Id. at 807, 827; In re A.M., 418 S.W.3d
830, 838–39 (Tex. App.—Dallas 2013, no pet.).

      A legal sufficiency challenge to a family violence protective order 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
                                          6
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 the vital fact. St. Germain, 2015 WL 4930588, at *2. If more than
a scintilla of evidence exists, it is legally sufficient. See Lee Lewis Constr., Inc. v.
Harrison, 70 S.W.3d 778, 782 (Tex. 2001). More than a scintilla of evidence exists
if the evidence furnishes some basis for reasonable minds to reach differing
conclusions about a vital fact’s existence. Id. at 782–83.

      When reviewing the factual sufficiency of the evidence, we examine the entire
record, considering evidence both in favor of and contrary to the challenged findings.
See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). We will set aside a factual
finding only if it is so contrary to the overwhelming weight of the evidence as to be
clearly wrong and unjust. See Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.
1986). The trier of fact is the sole judge of the credibility of the witnesses and the
weight to afford their testimony. GTE Mobilnet of S. Tex. Ltd. v. Pascouet, 61
S.W.3d 599, 615–16 (Tex. App.—Houston [14th Dist.] 2001, pet. denied). We will
not substitute our judgment for that of the fact finder merely because we might reach
a different conclusion. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex.
1998); Cohn v. Comm’n for Lawyer Discipline, 979 S.W.2d 694, 696 (Tex. App.—
Houston [14th Dist.] 1998, no pet.).

      The Family Code provides for issuance of a protective order if the trial court
finds that family violence has occurred and is likely to occur in the future. Tex. Fam.
Code Ann. § 81.001 (West 2014). “Family violence” is defined, in pertinent part, as
an

      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 sexual assault,

                                           7
       but does not include defensive measures to protect oneself.

Tex. Fam. Code Ann. § 71.004(1) (West 2014). “Family” is defined to include
individuals who are former spouses of each other. Tex. Fam. Code Ann. § 71.003
(West 2014). It is undisputed that appellant and Maria are former spouses. “Given
the remedial nature of [the Family Code’s protective order provisions], courts should
broadly construe its provisions so as to effectuate its humanitarian and preventative
purposes.” Boyd v. Palmore, 425 S.W.3d 425, 430 (Tex. App.–Houston [1st Dist.]
2011, no pet.).

       B.        Sufficiency review

       Appellant argues the evidence is insufficient for three reasons. First, he points
out that the assaults occurred in 2014, and “reaching beyond two years in the past
for such a history is unreasonable.” Second, he asserts that the more recent incidents
do not rise to the level of “intending physical harm or a threat of imminent physical
harm” and therefore do not amount to “family violence.”             Finally, appellant
emphasizes his testimony during the hearing denying the alleged acts, the lack of
testimony from other witnesses corroborating Maria’s version of events, and the
emails he admitted into evidence. In appellant’s view, each of these items weighs
against the trial court’s findings that family violence occurred and was likely to occur
in the future.

       The occurrence of the alleged assaults in 2014 does not render the evidence
legally or factually insufficient. Nothing in the statute places a time constraint on
the acts of family violence that a trial court can consider when presented with an
application for a protective order. See Tex. Fam. Code Ann. §§ 71.004, 85.001(a)(1).

       Moreover, in addition to evidence regarding the 2014 assaults, the record
contains evidence of other, more recent acts that could be found to constitute “family
violence” under the statute. The trial court heard Maria testify that appellant had
                                           8
recently followed her and confronted her numerous times as detailed above, that she
felt threatened by appellant’s acts, and that she was concerned that the increasing
frequency and level of appellant’s acts would lead to future violent acts against her.
This constitutes more than a scintilla of evidence that “family violence” had occurred
in the past. See Tex. Fam. Code Ann. § 71.004(1) (defining “family violence” to
include threats “that reasonably places the [family] member in fear of imminent
physical harm, bodily injury, assault, or sexual assault”); 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 more than a scintilla of evidence
supporting the trial court’s finding that appellant would likely commit family
violence 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 (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).

       We also conclude that the trial court’s findings are not so contrary to the
overwhelming weight of the evidence as to be clearly wrong and unjust. The trier
of fact, in this case the trial court, is the sole judge of the credibility of the witnesses
and the weight to be given their testimony. Boyd, 425 S.W.3d at 431. The trial judge
heard both witnesses testify during the hearing and was free to believe Maria’s
testimony and disbelieve appellant’s, even without evidence corroborating Maria’s
account. See id. (holding trial court was free to place greater weight on applicant’s


                                             9
testimony when making family violence finding); Amir-Sharif v. Hawkins, 246
S.W3d 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). We overrule appellant’s third
issue.

II.      The burden of proof by a preponderance of the evidence adequately
         protects appellant’s parental rights.
         Appellant complains in his first issue about the burden of proof required to
obtain a two-year protective order. Appellant argues that because a protective order
may infringe on certain constitutionally protected rights, the trial court should have
applied a clear-and-convincing-evidence burden of proof rather than a
preponderance-of-the-evidence burden. Appellant specifically complains about the
potential effect the order might have on a future proceeding determining
conservatorship of a child.1

         Appellant did not preserve this issue for our review by asking the trial court
to apply a higher burden of proof. In any event, the Dallas Court of Appeals recently
considered and rejected similar arguments. See Roper v. Jolliffe, 493 S.W.3d 624,
636–38 (Tex. App.—Dallas 2015, pet. denied). In Roper, the court determined that
the interests at stake in a protective order proceeding “do not equate to cases that
require proof by clear and convincing evidence, such as the involuntary termination
of parental rights or commitment for mental illness.” Id. at 638. Although section
153.004 of the Family Code does direct a finder of fact determining conservatorship
of a child to consider evidence that, within the two-year period preceding the filing

         1
         Although appellant and Maria have no children, appellant has two minor children from a
prior marriage. Appellant also notes that the protective order prohibits him from possessing
firearms, but he provides no briefing addressing why this prohibition requires a heightened burden.
We therefore do not consider that issue.

                                                10
of the suit or during the pendency of the suit, a protective order was entered against
the parent, this provision creates only a rebuttable presumption. See Tex. Fam. Code
Ann. § 153.004(f); Alexander v. Rogers, 247 S.W.3d 757, 761–62 (Tex. App.—
Dallas 2008, no pet.) (“[T]he family code establishes a rebuttable presumption that
the appointment of the abusive parent as sole managing conservator of a child is not
in the best interest of the child.”). As such, “it does not make the entry of the
protective order dispositive on the issue of conservatorship.” Id. at 764.

         Because the protective order does not directly infringe on appellant’s parental
rights, we agree with the Dallas Court of Appeals that due process did not require a
burden of proof higher than the preponderance-of-the-evidence standard mandated
in most civil matters. See Roper, 493 S.W.3d at 638 (“The legislature has not
required a higher standard of proof and none of Roper’s arguments persuade us that
a higher standard of proof is required by due process.”) We overrule appellant’s first
issue.

III.     Appellant has not preserved his second issue for appellate review.

         Appellant argues in his second issue that the 48-hour notice he received of the
hearing regarding a protective order was unreasonable and insufficient, and therefore
denied him procedural due process. Appellant admits, however, that he neither
objected on the basis of insufficient notice nor requested a continuance as allowed
by the Family Code. See Tex. Fam. Code Ann. § 84.004(a) (West 2014).               As a
prerequisite to presenting a complaint for appellate review, the record must show
that “the complaint was made to the trial court by a timely request, objection, or
motion.” Tex. R. App. P. 33.1(a)(1); Mansions in the Forest, L.P. v. Montgomery
Cnty., 365 S.W.3d 314, 317 (Tex. 2012). This rule also applies to constitutional
complaints, including due process violations. See In re L.M.I., 119 S.W.3d 707, 711
(Tex. 2003) (observing that the Supreme Court of the United States and the Supreme

                                            11
Court of Texas have both held that even constitutional claims must be raised in the
trial court to preserve error); Alford v. Thornburg, 113 S.W.3d 575, 581 (Tex.
App.—Texarkana 2003, no pet.) (“Even constitutional errors, such as due process
complaints, are waived if not raised first in the trial court.”). We hold appellant did
not preserve this issue for appellate review because he did not raise his complaint
with the trial court. We overrule appellant’s second issue.

                                    CONCLUSION

      Having overruled each issue raised by appellant in this appeal, we affirm the
trial court’s protective order.




                                        /s/    J. Brett Busby
                                               Justice



Panel consists of Justices Christopher, Busby, and Jewell.




                                          12
