                                      In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                             ___________________

                              NO. 09-12-00568-CV
                             ___________________

                          CLOYCE DAVIS, Appellant

                                        V.

                   RHONDA CEARLEY, Appellee
_________________________________________________________________ _

                On Appeal from the 418th District Court
                      Montgomery County, Texas
                    Trial Cause No. 12-09-10222 CV
_________________________________________________________________ _

                          MEMORANDUM OPINION

      Appellant Cloyce Davis challenges the trial court’s order granting the

application for a family violence protective order filed by his former girlfriend,

appellee Rhonda Cearley. We affirm the trial court’s protective order.

                                 BACKGROUND

      Cearley filed an application for a protective order against Davis. Cearley

alleged that Davis had committed family violence and would likely commit family

violence in the future. The application was supported by Cearley’s affidavit. The

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trial court signed an ex parte temporary protective order and set a hearing on

Cearley’s application. Davis filed an application for a protective order against

Cearley, which was supported by Davis’s affidavit.

      The trial court conducted a hearing on both applications on October 23,

2012. Cearley appeared pro se, and Davis was represented by counsel. Cearley

testified that she and Davis had dated for about four years, had an intimate

relationship, and had lived together. Cearley testified that in the past, Davis had hit

her, pushed her, and cursed her. Cearley testified that Davis had slapped her six

times during their four-year relationship and had struck her with a closed fist twice.

According to Cearley, Davis “does methamphetamine” and then “wants to fight”

with her.

       Cearley testified that on August 15, 2012, she told Davis to move out of her

home because he was not treating her properly, and she slapped Davis’s face one

time. Cearley testified that she threw Davis’s clothes and belongings into the back

of his truck because Davis refused to leave. The next day, Cearley returned home

to find Davis in the house, and she testified that he immediately began cursing at

her. Cearley testified as follows:

      [H]e told me that he would make sure that no one ever was with me
      again and that I was dead. And then that’s when he . . . grabbed me by
      my throat and threw me against the cabinets. I busted the back of my

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      head against the tile floor, had to have two staples in the back of my
      head, and I broke my neck.

Cearley denied striking Davis that day. Cearley explained that she lost

consciousness after Davis broke her neck, and when she regained consciousness,

Davis looked at her with hatred, threw her onto the kitchen table, and broke her

phone when she tried to call 911. Cearley testified that she fears Davis will come

after her again because he has told other people that he will do so. Cearley

explained that she no longer has any property that Davis believes he owns, so she

does not know why Davis returned to her house on August 16th.

      On cross-examination, Cearley testified that she has a thirteen-year-old

daughter. Cearley explained that her parents own the house where she lived with

Davis and her daughter, and her parents refused to evict Davis because they were

unaware of what was happening. Cearley testified that she takes several

medications because she is diabetic, has high blood pressure, and has slipped discs,

a pinched nerve, and a broken neck. Cearley denied being a violent person, and she

testified that she had never struck Davis until she slapped him the day before he

broke her neck. She admitted that she has sometimes cursed at Davis. Cearley

denied getting into physical confrontations with her parents or her daughter.

Cearley testified that although Davis choked her, she did not have any marks

around her neck.
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      Davis testified that he did not confront Cearley on August 15, but Cearley

told him to get his clothes and shoved Davis and hit him. According to Davis,

Cearley’s parents had told him not to leave. Davis testified that Cearley was

becoming violent, told him to leave, and began taking his belongings to the truck.

Davis explained that Cearley hit him four or five times while he was attempting to

retrieve his belongings from the bedroom. Davis testified that after he went outside

to the porch, he was talking to Cearley’s mother and daughter, and Cearley again

began slapping, pushing, and hitting him while her mother and daughter were

trying to hold her back. According to Davis, Cearley was mad and upset, and he

testified that Cearley “got violent pretty regularly” after the first two years of their

relationship. Davis denied hitting or abusing Cearley prior to the day the incident

occurred. Davis testified that later that night, Cearley’s boyfriend began

threatening him over the telephone.

      Davis testified that when he got to the house the next morning to get his

clothes, he had decided to move out and wanted to pick up his clothes. Davis

explained that he believed Cearley would be out with her boyfriend. Davis testified

that when he realized Cearley was home, “[s]he hugged me and told me she loved

me and told me there was nobody else and told me she wanted to be with me.”

Davis testified that Cearley then called her boyfriend and handed the phone to

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Davis. According to Davis, Cearley’s boyfriend threatened to kill Davis if Davis

did not leave Cearley’s house. Davis testified that Cearley then began to hit and

push him. Davis explained that he shoved Cearley away, and Cearley struck her

head on the bottom of the cabinet. Davis testified that Cearley appeared to be “high

on pills.” Davis testified that he apologized to Cearley, and Cearley told him to

leave. Davis explained that he did not intend to hurt Cearley when he pushed her.

      Davis testified that he believes Cearley has his lawn mower, refrigerator,

tools, trailer, a bedroom suite, and a freezer, and he wants those items returned to

him. Davis stated that he would not do anything violent to retrieve his items from

Cearley. Davis testified that he is currently residing with his new girlfriend, but he

fears that Cearley will come after him “[b]ecause she’s very violent and hateful.”

Davis denied telling anyone that he intended to kill Cearley or that if he could not

have Cearley, no one could. Davis also denied that he had ever taken

methamphetamine. Davis testified that he believed Cearley would come after him

again if the trial court did not grant him a protective order against her.

      Cearley’s mother Shirley testified that on August 15, she saw Davis trying to

leave the home, but Cearley “wouldn’t let him get his clothes and boots and she

was slapping him and cursing him.” Shirley testified that she and her husband told

Davis he did not have to leave because they owned the home. Shirley denied

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seeing Cearley strike Davis or Davis strike Cearley before that day. Shirley

explained that she has no firsthand knowledge of what happened on the day

Cearley’s neck was broken. On cross-examination, Shirley testified that Cearley

can be abusive “when she doesn’t get her way[,]” and that Cearley has some

violent characteristics. According to Shirley, Cearley bruises easily, so she would

expect to see marks on Cearley’s neck if someone had choked Cearley. Shirley

testified that she did not see any bruises or red marks on Cearley’s neck or face on

August 16. Shirley opined that Cearley was not in danger of being harmed by

Davis in the future, but that Cearley “might be” a danger to Davis.

      Cearley’s father Jack testified that Cearley had physically attacked him

before. Jack testified that Cearley has violent tendencies and suffers from mental

problems. Cearley’s boyfriend, Billy Wagner, testified that on August 16, he was

talking to Cearley on the telephone, and he heard Cearley asking Davis to leave,

and he then heard things shuffling across the floor, Cearley screamed, and the

phone went dead.

      At the conclusion of the hearing, the trial judge asked Davis if he would

voluntarily submit to a rapid urinalysis for methamphetamine and Davis agreed.

The trial court indicated that the results were “certainly . . . questionable if not

positive for methamphetamine . . . .” The trial court found that family violence has

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occurred in the past and is likely to occur in the future, and granted Cearley a

protective order against Davis. The trial court denied Davis’s request for a

protective order.

                                  DAVIS’S ISSUE

      In his sole appellate issue, Davis challenges the factual sufficiency of the

evidence supporting the trial court’s decision to grant Cearley’s application for a

protective order. Davis argues that he did not intend to harm Cearley, and his

“slight use of force” was in self-defense. As the trier of fact, the trial court is the

sole judge of the weight and credibility of the evidence, and is entitled to resolve

any conflicts in the evidence and to choose which testimony to believe. City of

Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005); see also Golden Eagle

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

Wilkerson, 321 S.W.3d 110, 116 (Tex. App.—Houston [1st Dist.] 2010, pet.

dism’d). The fact finder may choose to believe one witness over another, and we

may not substitute our judgment for that of the fact finder. Golden Eagle Archery,

116 S.W.3d at 761; Figueroa v. Davis, 318 S.W.3d 53, 60 (Tex. App.—Houston

[1st Dist.] 2010, no pet.).

      “When the trial court acts primarily as a factfinder, appellate courts normally

review its determinations under the legal and factual sufficiency standards.” In re

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M.G.M., 163 S.W.3d 191, 201 (Tex. App.—Beaumont 2005, no pet.) (citing In re

Doe, 19 S.W.3d 249, 253 (Tex. 2000)). When a party attacks the factual

sufficiency of an adverse finding on an issue on which he did not have the burden

of proof, he must demonstrate on appeal that there is insufficient evidence to

support the adverse finding. Id. In conducting this review, “we must examine the

entire record and consider and weigh all the evidence, both in support of, and

contrary to, the challenged finding.” Id. (citing Ortiz v. Jones, 917 S.W.2d 770,

772 (Tex. 1996); Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex.

1989)). “We must uphold the finding unless the evidence that supports it is so

weak as to be clearly wrong or manifestly unjust.” Id.

      An applicant is entitled to 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 2008). “Family violence” includes “dating violence[,]” which

the Family Code defines as:

      an act, other than a defensive measure to protect oneself, by an actor
      that: (1) is committed against a victim: (A) with whom the actor has
      or has had a dating relationship . . .; and (2) is intended to result in
      physical harm, bodily injury, assault, or sexual assault or that is a
      threat that reasonably places the victim in fear of imminent physical
      harm, bodily injury, assault, or sexual assault.

Id. §§ 71.004(3) (West 2008), 71.0021(a) (West Supp. 2012). The Family Code

defines “dating relationship” as “a relationship between individuals who have or
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have had a continuing relationship of a romantic or intimate nature.” Id. §

71.0021(b).

      Reviewing all of the evidence, we conclude that Davis has not demonstrated

that the evidence supporting the trial court’s protective order was factually

insufficient. See In re M.G.M., 163 S.W.3d at 201. As trier of fact, the trial court

was the sole judge of the credibility of the witnesses. See Wilkerson, 321 S.W.3d at

116. In its role as fact finder, the trial court could reasonably conclude that Cearley

was testifying truthfully. Credibility of witnesses is within the sole province of the

fact finder. Walker & Assocs. Surveying, Inc. v. Austin, 301 S.W.3d 909, 916 (Tex.

App.—Texarkana 2009, no pet.). The evidence supporting the trial court’s

protective order is not so weak as to make the trial court’s protective order clearly

wrong or manifestly unjust. See id. at 916 n.4; see also Tex. Fam. Code Ann. §§

71.004(3), 71.0021(a), 81.001. Accordingly, we overrule Davis’s sole issue and

affirm the trial court’s protective order.

      AFFIRMED.

                                                 _____________________________
                                                        STEVE McKEITHEN
                                                           Chief Justice


Submitted on June 24, 2013
Opinion Delivered July11, 2013
Before McKeithen, C.J., Gaultney and Horton, JJ.
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