                             Fourth Court of Appeals
                                    San Antonio, Texas
                                MEMORANDUM OPINION
                                       No. 04-12-00660-CV

                                    Jaime E. VALENZUELA,
                                            Appellant

                                                v.
                                             Gabriela
                                        Gabriela MUNOZ,
                                            Appellee

                     From the 57th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2012-CI-12410
                              Honorable Larry Noll, Judge Presiding

Opinion by:      Luz Elena D. Chapa, Justice

Sitting:         Catherine Stone, Chief Justice
                 Marialyn Barnard, Justice
                 Luz Elena D. Chapa, Justice

Delivered and Filed: August 28, 2013

AFFIRMED

           Jamie Valenzuela appeals the trial court’s protective order that restrains him from

contacting his former girlfriend, Gabriela Munoz, except for the limited purpose of coordinating

visitation with their son. He argues the evidence was legally and factually insufficient to support

the required findings that (1) family violence had occurred and (2) family violence was likely to

occur in the future. We affirm the order.
                                                                                      04-12-00660-CV


                                          BACKGROUND

       Valenzuela and Munoz were in a sexual relationship from October 2010 to July 2012,

although Valenzuela was married to a different woman. Munoz testified that they initially had a

good relationship, but Valenzuela became jealous and emotionally abusive around the time she

became pregnant with their son and gave birth to him.

The July Incident

       Valenzuela does not live in San Antonio, but was in town for a conference when the alleged

violence occurred in July 2012. On the first night of the conference, Valenzuela and Munoz had

sex and argued afterward about the future of their relationship. They continued to communicate

through text messages over the next two days, until the main incident precipitating the protective

order occurred at Munoz’s house.

       Valenzuela and Munoz offered competing testimony about the events of that night.

Initially, they disagree about why Valenzuela went to Munoz’s house. According to Munoz,

Valenzuela called her that night, told her that he was in trouble, and asked her to come pick up his

gun because he was drunk. She refused, and despite her protests, Valenzuela insisted that he go to

her house and did so, appearing drunk, angry, and frustrated. By contrast, Valenzuela testified that,

while he was playing cards with his coworkers at his hotel, Munoz was barraging him with text

messages, asking him to come over to her house. He was reluctant because he was considering

ending their relationship. Although he told Munoz that he was drunk, he testified he stopped

drinking three hours before texting Munoz and he was not drunk when he arrived at her house.

       Munoz testified that once Valenzuela was inside the house, he loaded his gun, began to

“sweep” the house, and said he would shoot anyone found. Valenzuela testified that he unloaded

his gun when he entered her house, but admitted he did “clear” her house with his gun drawn,

going from room to room “like a SWAT team.” According to Munoz, Valenzuela repeatedly said
                                                -2-
                                                                                    04-12-00660-CV


he had come over to take away his son. She claimed that Valenzuela picked up their son and tried

to leave several times. Valenzuela denied that he intended to leave with the child and claimed he

returned him to Munoz whenever she asked. Munoz also claimed Valenzuela made threats to kill

her and her family so that only the Valenzuela family would raise their son—threats which

Valenzuela adamantly denied.

       Their argument spilled into the street. There was testimony from both Valenzuela and

Munoz that they continued to exchange—voluntarily or not—their son between them. There was

testimony that Munoz repeatedly tried to hide Valenzuela’s gun and keys. There was also

testimony that Valenzuela took Munoz’s car keys away from her. Eventually, Valenzuela drove

away without their son or his gun.

       Munoz’s brother testified he had seen Munoz and Valenzuela arguing outside, and after

Valenzuela left, he drove up to her house. According to Munoz, her brother was carrying the child

outside when Valenzuela returned and took the child from her brother’s arms. When Munoz

attempted to remove their son from Valenzuela’s arms, Munoz and her brother testified that

Valenzuela grabbed Munoz’s hair and jerked her back and forth. Her brother intervened, and

Valenzuela swung at him, saying he would break his neck and kill him. When Valenzuela finally

left, he said he was “going to come back with a bigger gun and I'm going to kill you.” Valenzuela

denied that he made any threats, swung at her brother, or pulled Munoz by her hair. Valenzuela

was arrested that night and charged with making terroristic threats.

The Truck Incident

       Munoz also testified about a violent incident involving Valenzuela that occurred some

months before the July incident. Valenzuela had taken Munoz’s cellular phone away from her, and

when she tried to retrieve it from his truck with him behind the wheel, Valenzuela put the truck in

motion and dragged her several feet. Munoz’s mother testified that she witnessed the incident and
                                               -3-
                                                                                       04-12-00660-CV


agreed with Munoz’s portrayal. Yet according to Valenzuela, he told Munoz to wait because he

was going to park the truck, but she decided to reach for the phone while the truck was in motion.

Other Testimony

       Munoz’s former supervisor in the National Guard testified that while Munoz was pregnant,

she confided in him that she was afraid of Valenzuela because violence existed in their relationship.

       Valenzuela’s own supervisor from the National Guard testified that Munoz repeatedly

texted Valenzuela on the night of the July incident, but he was reluctant to go over to her house

because he wanted to end their relationship.

       Valenzuela’s estranged wife and his two older sons testified Valenzuela was not a violent

person and had not committed family violence against them.

                                         APPLICABLE LAW

Protective Orders

       After conducting a hearing on an application for a protective order, the court may render a

protective order if it finds that (1) family violence has occurred and (2) family violence is likely to

occur in the future. TEX. FAM. CODE ANN. § 85.001(a), (b)(1) (West 2008 & Supp. 2012). Family

violence, as relevant to this appeal, is an act (1) against a person with whom the actor has or has

had a dating relationship and (2) intended to result in physical harm, bodily injury, or assault or to

threaten the same. Id. §§ 71.004(3); 71.0021(a).

Standard of Review

       Valenzuela did not have the burden of proof at the hearing; therefore, we will reverse the

trial court’s protective order on legal sufficiency grounds if the evidence supporting the order could

not “enable reasonable and fair-minded people to reach the verdict under review.” City of Keller

v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). A finding is not reasonable if “(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
                                                 -4-
                                                                                                  04-12-00660-CV


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.” Id. at 809. We must “credit favorable evidence if reasonable jurors could,

and disregard contrary evidence unless reasonable jurors could not.” Id. at 827.

        We may overturn the protective order on factual sufficiency grounds only if, after

considering and weighing all the evidence, the findings supporting the order are “so contrary to

the overwhelming weight of the evidence that they are clearly wrong and unjust.” Cain v. Bain,

709 S.W.2d 175, 176 (Tex. 1986) (per curiam).

        Of course, the trial court is the sole judge of witnesses’ credibility and the weight accorded

to their testimony. See City of Keller, 168 S.W.3d at 819. It may choose to believe one witness and

disbelieve another, either in whole or in part. See id.; Peña v. Garza, 61 S.W.3d 529, 532 (Tex.

App.—San Antonio 2001, no pet.).

                                                 APPLICATION

Past Family Violence

        The record discloses evidence of at least two discrete events supporting the finding that

Valenzuela committed family violence against Munoz. 1 Munoz and her brother both testified that

Valenzuela grabbed Munoz’s hair and jerked her back and forth during the July incident. Munoz

and her mother also testified to another incident where Valenzuela deliberately put his truck into

reverse and dragged her several feet while Munoz was reaching inside of it. Although Valenzuela

claims “[t]here was a complete absence of evidence as to real attempts by [Valenzuela] to do

anything harmful to [Munoz] or the child,” his brief is devoid of any mention of how he grabbed



1
  We rely on two discrete instances of Valenzuela’s actual physical contact against Munoz. However, we do not imply
that Valenzuela’s other alleged actions that night, such as his “SWAT-style” sweep of her home or attempt to take
their son while intoxicated, would not also support a finding of family violence.

                                                       -5-
                                                                                      04-12-00660-CV


Munoz’s hair and shook her. He does, however, attempt to characterize the truck-dragging incident

as a “he-said, she-said” situation, referring to his testimony that Munoz reached into his truck while

it was moving. But his characterization overlooks the standard of review, which requires us to

view the evidence in the light most favorable to the verdict, and the trial court’s prerogative to

believe or disbelieve witnesses. See City of Keller, 168 S.W.3d at 827; Peña, 61 S.W.3d at 532.

The trial court also could have believed Munoz’s supervisor, when he testified that Munoz was

afraid of the violence in her relationship with Valenzuela. In sum, Munoz’s supervisor’s testimony

and the evidence regarding these two physical acts is “more than a scintilla of evidence” that family

violence occurred and is therefore legally sufficient. See City of Keller, 168 S.W.3d at 809.

       With respect to the factual sufficiency of the evidence, we have examined the parties’

diametrically opposed accounts of that night. According to Munoz, a drunk Valenzuela arrived

uninvited at her home, brandished a loaded handgun, attempted to take their son away, and attacked

both her and her brother. On the other hand, Valenzuela testified that he was not drunk, he unloaded

the gun as soon as he arrived, he did not attempt to leave with their son, and he never attempted to

attack Munoz or her brother. The trial court was free to disbelieve Valenzuela’s portrayals of these

events in their entirety. See Peña, 61 S.W.3d at 532. Aside from making general claims that

Munoz’s version of the events was “unbelievable” and designed to gain an advantage in a custody

case, Valenzuela does not offer, and we cannot discern, any principled basis for reversing the trial

court’s implicit credibility determinations. Accordingly, the finding that Valenzuela committed

family violence is factually sufficient because it is not “so contrary to the overwhelming weight of

the evidence that [it is] clearly wrong and unjust.” See Cain, 709 S.W.2d at 176.

Likelihood of Future Family Violence

       To establish the likelihood that Valenzuela will commit family violence in the future,

Munoz may rely on instances of past family violence. Texas courts have stated that “[o]ftentimes,
                                                 -6-
                                                                                      04-12-00660-CV


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 541,

544 (Tex. App.—Texarkana 2007, no pet.); see also Flanigan v. Glasgow, No. 04-11-00516-CV,

2012 WL 3104419, at *2 (Tex. App.—San Antonio Aug. 1, 2012, pet. denied) (mem. op.); Teel v.

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

Haskovec, 251 S.W.3d 79, 87 (Tex. App.—Corpus Christi 2008, no pet.).

       As discussed above, the evidence discloses at least two discrete instances of physical

family violence. Munoz also said Valenzuela had gradually grown more abusive after she became

pregnant with their son. See Clements, 251 S.W.3d at 87 (applicant testified the respondent had

become increasingly violent in the eight months before she sought a protective order). And she

testified Valenzuela made several threats to kill her, her family, and himself. We hold the evidence

of violence existing in their relationship according to Munoz’s supervisor, two past incidents of

family violence, and the threats of further violence are more than a scintilla of evidence that there

was a likelihood Valenzuela would commit future acts of family violence. See id. (holding

respondent’s increasingly violent behavior and past instances of family violence justified trial

court’s finding that family violence would likely reoccur).

       Against the evidence that he committed acts of family violence and threatened to commit

more, Valenzuela points to testimony by his estranged wife and two adult sons that he has never

committed family violence against them and that in the two months between the July incident and

the issuance of the order, there were no incidents of family violence. Again, we must recognize

that the trial court, as the factfinder, had the prerogative to believe or disbelieve the witnesses at

the hearing. Peña, 61 S.W.3d at 532. We also note the trial court was not obligated to ignore

previous incidents of family violence simply because no further assaultive behavior occurred in

the lead up to the protective order hearing. See Clements, 251 S.W.3d at 87–88. We are therefore
                                                 -7-
                                                                                    04-12-00660-CV


unpersuaded that the trial court erred when it found the likelihood of family violence existed, and

we hold the evidence to be factually sufficient.

                                          CONCLUSION

       We affirm the protective order.


                                                    Luz Elena D. Chapa, Justice




                                                   -8-
