                               COURT OF APPEALS
                               SECOND DISTRICT OF TEXAS
                                    FORT WORTH

                                  NO. 02-11-00370-CV


Jayson Aguilar                            §   From the 231st District Court

                                          §   of Tarrant County (231-500094-11)
v.
                                          §   December 21, 2012

Serina Sierra Aguilar                     §   Per Curiam


                                     JUDGMENT

       This court has considered the record on appeal in this case and holds that

there was no error in the trial court’s judgment. It is ordered that the judgment of

the trial court is affirmed.


                                       SECOND DISTRICT COURT OF APPEALS



                                       PER CURIAM
                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-11-00370-CV


JAYSON AGUILAR                                                      APPELLANT

                                         V.

SERINA SIERRA AGUILAR                                                 APPELLEE


                                      ----------

          FROM THE 231ST DISTRICT COURT OF TARRANT COUNTY

                                      ----------

                        MEMORANDUM OPINION1
                                      ----------

                                   I. Introduction

      Appellant pro se Jayson Aguilar appeals following the trial court’s entry of

a protective order against him, and he argues in three issues that the trial court

erred by allowing perjury to be used as supporting evidence, by ruling without

factually accurate evidence, and by violating his Fourth and Seventh Amendment

rights. We affirm.

      1
       See Tex. R. App. P. 47.4.


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                                 II. Background

      The following facts are set forth in the July 11, 2011 affidavit in support of

application for protective order signed by Serina Sierra Aguilar, the complainant

and appellee herein. Serina and Jayson were married in 2004 and lived together

until June 27, 2011. They have two children.

      On June 4, 2011, Jayson was showing Serina a martial arts move he had

learned. When Serina told him that she was not interested, Jayson ―accidentally‖

kicked her on the thigh with the heel of his foot, leaving a bruise on Serina’s

thigh. Later that month, Jayson taught the couple’s older son about pressure

points on a person’s body, but Serina told Jayson that she did not believe it was

appropriate to teach such things to a five-year-old child. Jayson stated that the

techniques were for self-defense, and he demonstrated by touching Serina’s

pressure points. Serina told Jayson to stop, but ―Jayson continued for a few

more times causing [Serina] pain [in her] right foot and leaving a finger nail

imprint.‖

      On June 26, 2011, Jayson broke items in Serina’s parents’ house in anger

and stated via telephone that he wanted to kill her parents. Someone called the

police, but Jayson had left before the police arrived. The locks were changed,

but Jayson returned around two or three o’clock the next morning. Jayson told

Serina that ―he would [w]ring [her] neck like a chicken.‖ Jayson also touched

pressure points on Serina’s forehead and shoulder, and Serina cried. Jayson




                                         3
then ―struck his arm at [Serina] and [she] dodged it.‖ Jayson was arrested when

the police arrived.

      After his arrest, Jayson called Serina from jail until she called to report him.

Serina stated in the affidavit that she feared for her life, that Jayson talked about

killing her, that he said he would kill her if she turned to the police, that he said

there would be no evidence that he had killed her, and that ―Jayson’s anger

allows him to do crazy cruel things.‖

      The trial court rendered a written protective order against Jayson on July

19, 2011. Jayson did not appear for the hearing.

                                  III. Discussion

      Jayson argues in his first and second issues that the trial court erred by

allowing perjury to be used as supporting evidence and that the trial court did not

have ―factual truth‖ when making its decision. We broadly construe Jayson’s first

two issues to challenge the legal and factual sufficiency of the evidence. Jayson

argues in his third issue that the trial court violated his Fourth and Seventh

Amendment rights.

A. Standards of Review

      ―[W]e review appellate challenges to the granting of protective orders for

sufficiency of the evidence, measured by legal and factual sufficiency

contentions.‖ Schaban-Maurer v. Maurer-Schaban, 238 S.W.3d 815, 823 (Tex.

App.—Fort Worth 2007, no pet.), disapproved on other grounds, Iliff v. Iliff, 339

S.W.3d 74 (Tex. 2011). We may sustain a legal sufficiency challenge only when


                                          4
(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. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328,

334 (Tex. 1998), cert. denied, 526 U.S. 1040 (1999); Robert W. Calvert, “No

Evidence” and “Insufficient Evidence” Points of Error, 38 Tex. L. Rev. 361, 362–

63 (1960). In determining whether there is legally sufficient evidence to support

the finding under review, we must consider evidence favorable to the finding if a

reasonable factfinder could and disregard evidence contrary to the finding unless

a reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas, 228

S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827

(Tex. 2005).

      When reviewing an assertion that the evidence is factually insufficient to

support a finding, we set aside the finding only if, after considering and weighing

all of the evidence in the record pertinent to that finding, we determine that the

credible evidence supporting the finding is so weak, or so contrary to the

overwhelming weight of all the evidence, that the answer should be set aside and

a new trial ordered. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986)

(op. on reh’g); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Garza v. Alviar,

395 S.W.2d 821, 823 (Tex. 1965).




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B. Legally and Factually Sufficient Evidence

      A trial court must render a protective order ―if the court finds that family

violence has occurred and is likely to occur in the future.‖ Tex. Fam. Code Ann.

§ 81.001 (West 2008); see id. § 85.001 (West Supp. 2012). In his brief, Jayson

presents his version of what occurred in June 2011, denies that he made threats

against Serina’s life or safety, asserts that Serina’s affidavit contains numerous

untruths, and denies that he committed family violence.

      We first note that Serina’s affidavit presented sufficient evidence that

family violence had occurred and was likely to occur in the future. Relevant to

this case, ―family violence‖ means an act by one member of a family against

another member of that 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.‖ Id. § 71.004(1) (West 2008). Serina’s affidavit includes statements that

Jayson kicked her on her thigh, possibly accidentally, on June 4, 2011; that

Jayson caused Serina pain when he, without her consent, demonstrated

pressure points for their son later in June 2011; that on June 26, 2011, Jayson

broke items in Serina’s parents’ house in anger, said that he wanted to kill

Serina’s parents, and left before police arrived; that Jayson, early the next

morning, touched pressure points on Serina’s forehead and shoulder, said that

he would ―[w]ring [her] neck like a chicken,‖ and struck his arm at her; and that

Jayson continued to call Serina from jail after his arrest. Serina’s affidavit also


                                        6
states that she feared for her life and that Jayson had talked to her about killing

her but leaving no evidence.

      In the context of protective orders, Texas law recognizes that evidence

showing that a person has engaged in abusive conduct in the past permits an

inference that the person will continue such conduct in the future. See In re

Epperson, 213 S.W.3d 541, 543–44 (Tex. App.—Texarkana 2007, no pet.); In re

T.L.S., 170 S.W.3d 164, 166 (Tex. App.—Waco 2005, no pet.), overruled on

other grounds by In re J.D., 304 S.W.3d 522 (Tex. App.—Waco 2009, no pet.).

As noted in Epperson, ―Oftentimes, past is prologue; therefore, past . . . conduct

can be competent evidence which is legally and factually sufficient to sustain the

award of a protective order.‖ 213 S.W.3d at 544. In this case, there is evidence

within the affidavit showing escalated incidents of hostility and physical and

verbal aggression toward Serina. That evidence and the evidence that Jayson

continued to contact Serina from jail together constitute legally and factually

sufficient evidence that family violence had occurred and was likely to occur in

the future. See Tex. Fam. Code Ann. §§ 71.004(1), 81.001, 85.001; Pena v.

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

conflicting evidence at trial and trial court’s role as factfinder, and holding legally

and factually sufficient evidence supported future family violence finding); see

also K.D. v. D.D., No. 04-09-00091-CV, 2010 WL 724373, at *5–6 (Tex. App.—

San Antonio Mar. 3, 2010, no pet.) (mem. op.) (holding evidence of future family




                                          7
violence legally sufficient based on inference from past conduct and past threat

to harm complainant if complainant reported sexual abuse).

      Jayson argues that the statements in Serina’s affidavit are untrue and

constitute perjury, and he asserts that the trial court made its decision to render

the protective order with only Serina’s version of events. However, we cannot

reverse the protective order on these grounds. First, nothing in the appellate

record other than Jayson’s assertions suggests that Serina’s affidavit actually

contains perjury, and ―alleged perjury [is not] an issue on which this court can

grant relief.‖ Hendricks v. Hendricks, No. 02-05-00304-CV, 2007 WL 2067827,

at *3 n.6 (Tex. App.—Fort Worth July 19, 2007, no pet.) (mem. op.). Second,

Jayson’s version of what occurred in June 2011 is not in the record, and we are

therefore not permitted to consider it. See Nguyen v. Intertex, Inc., 93 S.W.3d

288, 292–93 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (―With limited

exceptions not relevant here, an appellate court may not consider matters

outside the appellate record.‖), overruled on other grounds by Glassman v.

Goodfriend, 347 S.W.3d 772 (Tex. App.—Houston [14th Dist.] 2011, pet. denied);

see also In re D.L.S., No. 02-10-00366-CV, 2011 WL 2989830, at *6 n.6 (Tex.

App.—Fort Worth July 11, 2011, no pet.) (mem. op.). Moreover, even if the

statements in Jayson’s appellate brief were before the trial court at the time of

the protective order hearing, it was the trial court’s province to judge the

credibility of the witnesses and to resolve any discrepancies in their testimony,

meaning we as an appellate court are not permitted to substitute our judgment


                                        8
for that of the trial court and are not allowed to reweigh the evidence.             See

Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003); Young

v. Young, 168 S.W.3d 276, 281 (Tex. App.—Dallas 2005, no pet.) (―In a bench

trial, it is for the court, as trier of fact, to judge the witnesses, to assign the weight

to be given their testimony, and to resolve any conflicts or inconsistencies in the

testimony.‖); In re M.G.M., 163 S.W.3d 191, 202 (Tex. App.—Beaumont 2005, no

pet.) (―It was for the trial court alone to determine the credibility of the witnesses,

and the trial court could have disregarded [respondent’s] denials in their

entirety.‖).

       Finally, to the extent that Jayson contends that the trial court heard only

Serina’s version of what occurred in June 2011 because he was not represented

by counsel, the appellate record does not contain any indication that Jayson

requested that the trial court appoint him counsel.          And even if Jayson had

requested counsel, Jayson does not have the automatic right to appointment of

counsel in this case because it is a civil protective order proceeding in which

Serina sought to have Jayson restrained but not imprisoned.               See Martin v.

Parris, No. 06-10-00037-CV, 2011 WL 766653, at *6 (Tex. App.—Texarkana

Mar. 4, 2011, no pet.) (mem. op.); Lopez v. State, No. 12-02-00380-CV, 2003 WL

23015072, at *2–3 (Tex. App.—Tyler Dec. 23, 2003, pet. denied) (mem. op.); see

also Cox v. Simmons, No. 07-07-00320-CV, 2007 WL 2409746, at *1–2 (Tex.

App.—Amarillo Aug. 24, 2007, order), disp. on merits, No. 07-07-00320-CV,




                                            9
2008 WL 216085 (Tex. App.—Amarillo Jan. 25, 2008, no pet.) (mem. op.). We

overrule Jayson’s first and second issues.

C. Constitutional Rights

      Jayson argues in his third issue that the trial court violated his Fourth and

Seventh Amendment rights by rendering the protective order.             Specifically,

Jayson contends that he should have been permitted a jury trial and that the

protective order, which prohibits him from going within 200 yards of the residence

where he formerly resided with Serina, denies him the right to be secure in his

home.

      Concerning Jayson’s alleged Seventh Amendment right to a jury trial, this

court has twice held that ―a party to a trial on an application for a family violence

protective order is not entitled to a jury trial.‖ Winsett v. Edgar, 22 S.W.3d 510,

512 (Tex. App.—Fort Worth 2000, pet. denied); Williams v. Williams, 19 S.W.3d

544, 545–46 (Tex. App.—Fort Worth 2000, pet. denied). We therefore overrule

this portion of Jayson’s third issue.

      As to Jayson’s contention that the protective order unconstitutionally

interferes with his right to be secure in his home, we note that family code section

85.022(b)(3) expressly allows a trial court to prohibit a person who has been

found to have committed family violence from going to or near the residence of

the person protected by the protective order.           Tex. Fam. Code Ann. §

85.022(b)(3) (West Supp. 2012).         We further note both that any review

concerning the alleged unconstitutional application of a statute begins with the


                                         10
presumption that the statute is constitutional and that the party challenging its

application has the burden of showing its alleged unconstitutionality. Teel v.

Shifflett, 309 S.W.3d 597, 601 (Tex. App.—Houston [14th Dist.] 2010, pet.

denied). Jayson’s brief states only that he ―feels his right to be secure at the

address he is not permitted to go to violates his IV Amendment rights.‖ This

argument, even assuming it were supported by evidence in the appellate record,

is not sufficient to overcome Jayson’s burden of showing the alleged

unconstitutional application of family code section 85.022(b)(3). We therefore

overrule the remainder of Jayson’s third issue.

                                 IV. Conclusion

      Having overruled each of Jayson’s three issues, we affirm the trial court’s

judgment.



                                                  PER CURIAM

PANEL: GARDNER, MCCOY, and MEIER, JJ.

DELIVERED: December 21, 2012




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