                             NUMBER 13-08-00593-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


HERACLIO ERIC FLORES,                                                        Appellant,

                                            v.

SHEILA REEVES FLORES,                                                          Appellee.


                   On appeal from the 430th District Court
                         of Hidalgo County, Texas.


                         MEMORANDUM OPINION

       Before Chief Justice Valdez and Justices Yañez and Garza
               Memorandum Opinion by Justice Yañez

      This is an appeal from a protective order issued by the trial court against appellant,

Heraclio Eric Flores.   By four issues, appellant complains of the legal and factual

sufficiency of the evidence to support the trial court's findings of past and future family
violence.1 We affirm.

                                               I. BACKGROUND

       Appellee, Sheila Reeves Flores, and appellant were divorced in November 2007.

Sheila filed an application for a protective order on July 31, 2008. A bench trial was held

on September 24, 2008. Sheila testified on her own behalf and called, among others, the

following witnesses: appellant, Richard Samudia, and Laura Leal. Appellant presented

the testimony of, among others, his brother, Jose Flores.

       At that trial, Sheila testified that appellant's behavior after the divorce had been "in

some areas" "nice and kind" but that appellant had begun "tracking" her, accusing her of

being a whore, threatening to take the children away from her, and attempting to "control

where [she was] at and when [she was] going to be there . . . ." Sheila stated that she had

asked appellant not to "come by" her residence; however, appellant told her that he would

do whatever he wanted to do.

       Sheila claimed that appellant had repeatedly "threatened that [she] will not go out

with anyone else" and has stated that "he doesn't even care if he's arrested [because] [n]o

matter what, he's not going to let that happen." According to Sheila, appellant has called

"each person" that she has "tried to go out with" and "talked poorly or both talked poorly

about [her] and threatened them." Sheila stated that appellant has been "telling people

that [she is] using drugs" and "accusing [her] of having drug dealers out in front of her

house . . . ."

       Sheila testified that on one occasion when she was dropping her children off at

school, appellant "blocked" her vehicle with his vehicle. According to Sheila, appellant


       1
           See T EX . F AM . C OD E A N N . §§ 81.001, 85.001 (Vernon 2006).

                                                         2
"came up in a rush in his car behind" her asking her to answer her phone and to speak with

her ex-boyfriend's wife, Laurie Regusa. Sheila told appellant, "Look, not at the kid's

school," and then drove away. Sheila stated that, as she drove off, appellant drove around

her, stopped his car in front of her car, exited his vehicle, and shouted that Sheila "better

talk to" Laurie.2 Sheila told appellant that she was going to call the police.3 Sheila stated

that appellant was "irate" and that she feared for her safety and felt threatened. Sheila

explained that appellant was at her car door and the traffic was passing by her vehicle; she

thought that he was "going to pull [her] out." Sheila stated that appellant "was just so, you

know, angry, I did not know what to think. I just needed him to leave me alone."

        Sheila testified that when she was at a friend's birthday party, appellant approached

her and said, "I'm going to be watching everything you do while you're at this

party. . . . You better not be talking to anybody else because I'm going to have my eye on

you." Sheila stated that she purposely moved from location to location at the huge

warehouse where the party was held, but she noticed that appellant "changed his

positioning so that he was, like, staring at [her]." Later, Sheila and a male friend went to

retrieve several items from her car, and appellant followed them outside and told Sheila's

friend to go inside. According to Sheila, appellant then "blocked" her way and would not

allow her to go back to the party. Sheila stated that appellant told her that they needed to


        2
            On cross-exam ination, Sheila stated:

        I'd already been presented with him [appellant] zoom ing— oops, sorry— zoom ing up behind
        m e in the gravel parking lot of m y kids' school with all the other parents there, trying to blow
        this thing out in the m iddle of the parking lot. And then I was presented with him not letting
        m e go but continuing ahead of m e, blocking m e off, getting out of the car in traffic and
        throwing a phone at m y window and trying to get in m y door. Yes, I felt threatened.

Sheila clarified that appellant had not "physically" thrown the phone at her.

        3
            On cross-exam ination, Sheila stated that she had called the police regarding this incident.

                                                        3
"talk about this" and that Sheila "was not going to be seeing other people." Appellant

allegedly said, "We need to get together, and we need to figure out what's going on here

because I'm not going to allow you to be going out with people." Sheila told appellant that

he needed to let her go, or she would call the hostess of the party to "come and help" her.

After Sheila repeated this to appellant several times and fifteen minutes had passed,

appellant "let" Sheila go back to the party. Sheila testified that she noticed that appellant

left the party when she left.

        When asked if appellant had ever called and threatened her, Sheila replied, "Well,

he's done that numerous times." Sheila claimed that she recorded those threatening calls

from appellant, and the trial court allowed the recordings to be played.4 When asked, "The

voice that we heard on that recording, is that the demeanor and how [appellant]

approaches you?", Sheila responded, "Repeatedly, yes." The following exchange then

occurred:

        [Sheila's counsel]: And you felt that you had to file this protective order
                            because he was threatening you?

        [Sheila]:                Correct.

        [Sheila's counsel]: Did you fear for your safety? Did you feel that he could
                            harm you?

        [Sheila]:                Definitely.

        [Sheila's counsel]: Why do you say that?

        [Sheila]:                Just by how his behavior has escalated over time and
                                 because he's said statements to me that he doesn't
                                 know how he would respond if he saw me out with


        4
           The record reveals that two recordings were played in open court. The court reporter docum ented
that the recordings were not clear enough for transcription. The court reporter requested copies of those tape
recordings. However, the court reporter noted in the record that those recordings have not been provided.
Those recordings are not included in the appellate record.

                                                      4
                                    someone, and he didn't think he would have control
                                    over himself, and from him blocking me on the two
                                    occasions that we discussed, plus one other occasion.

         Sheila testified that she has asked appellant to change his behavior and leave her

alone. Sheila documented that she has told appellant to leave her alone at least twice

each month since December 2007. After Sheila filed her application for a protective order

and appellant had agreed to mediation, she discovered a "tracking device" had been

attached to her vehicle.

         When asked whether she wanted appellant to be prohibited from carrying a firearm,

Sheila said, "Well, I really don't feel like he would shoot me, and if he did, I guess he would

go to prison for that, so I don't know. I know it means a lot to him, so I don't know what to

say on that, you know."5 However, Sheila agreed that she was fearful that appellant could

harm her and was fearful for her safety and welfare.

         On cross-examination, Sheila testified that appellant had been constantly calling

Laurie, her ex-boyfriend's wife. Sheila stated that she had talked to Laurie, and Laurie

warned her that appellant was "tracking" her phone records. According to Sheila, on

another occasion, Laurie said, "I'm sorry.                     You know, your husband, ex-husband

[appellant], keeps calling me and, you know, you need to be careful."

         After the divorce, Sheila continued working for appellant's company, APEX Primary

Care ("APEX") in Edinburg, Texas.6                    When asked how many times after filing the


         5
            W e note that in its order, the trial court specifically stated that appellant's license to carry a handgun
was not suspended. However, in his brief, appellant states that the trial court was without authority to allow
appellant to retain his license pursuant to section 411.72(a)(12) of the governm ent code. See T EX . G O V 'T
C OD E A N N . § 411.72(a)(12) (Vernon Supp. 2009). According to appellant, he was required to surrender his
concealed handgun license, despite the trial court's order.

         6
         W e note that Sheila owns her own business, Buena Suerte Hom e Health Care, that is located in
McAllen, Texas.

                                                          5
application for a protective order she had gone to her office, Sheila replied, "I would say

not more than a total of two hours a week. . . . I would say two times a week, but I don't

know how many weeks that's been. I generally try to get by there twice a week, in and

out." Sheila explained that she tried to time her visits to the office when she noticed that

appellant's car was not there.

       When asked if appellant had ever hit her, Sheila stated that during the last year of

their marriage, appellant had violently "thrown [her] out of the house." Sheila said, "He

picked me up and threw me out, and I caught myself on my elbow, and it's dark. . . . And

thereafter, he did not hit me again." Sheila explained that if appellant became mad at her,

and she got near him, appellant would tell her, "Don't you dare come near me. Don't you

dare come near me." Sheila interpreted appellant's remarks to mean that if she did go

near appellant, "it could happen again."

       Sheila stated that although she is not afraid when she goes to the office, she is

afraid when she is out socially. She said:

       So when I walk out my door and I walk to my mailbox, I look to see if
       somebody is watching. And I never would have someone over at my house
       because I know that he would be in that door or he would get them on the
       way out the door. And I know all of that because he's told me that
       repeatedly, and he's told everyone around me that repeatedly. And he's told
       people who were my friends that.

Sheila acknowledged that appellant had not broken down her door, but explained that she

does not have guests because she is afraid. Sheila testified that on one occasion when

her ex-boyfriend came to her residence, appellant "chased [the ex-boyfriend] down when

he left the house."

       Sheila stated:

       But I do know, on May 5th, that he [appellant] said he would always be a

                                             6
       threat if I went out with anyone. He said he would not care if he was arrested
       but he could be—not be trusted on how he would respond if he saw me with
       someone or someone saw—or saw me with someone in my house. He said
       that to me on the phone on May the 5th.

When asked if she was in fear for her life, Sheila said, "I believe when he says he cannot

be trusted and does not know what he can do that he is genuine in that emotion. And I

believe his emotions are often out of control." Sheila stated that she felt threatened

because appellant told her he could not be trusted. Sheila explained that she also felt

threatened because she told appellant that his brother-in-law had mowed her lawn, then

appellant "went and assaulted his brother-in-law and fired his sister in front of their

children . . . ." Sheila testified that appellant threatens anyone associated with her and that

puts her in danger because she cannot be around anyone who is being threatened by

appellant.

       Samudia, a private investigator, testified that he conducted an investigation

concerning a GPS device that was "strapped" to the back axle of Sheila's vehicle.

According to Samudia, he went to T-Mobile, the company where the GPS device had been

purchased, and discovered that the GPS device was listed on appellant's T-Mobile

account. Subsequently, the device was removed from Sheila's vehicle and Samudia took

the device with him. Samudia stated that when the device was turned on, he noticed that

a black Jeep Cherokee, registered to Savannah Gonzalez, was following him. Samudia

discovered that Gonzalez is appellant's niece. Samudia took the device with him for a day

and traveled to Elsa, Texas. Samudia said:

               And the device has that on-and-off switch, so I would turn it on and
       off. When I wanted them to follow me, I would turn it on, and they would
       follow me. Then, when I would park to see who was following me, I would
       turn it off. And I noticed the Jeep coming around so I turned it off and I left
       the area.

                                              7
              I went to Monte Alto, and I turned it back on when I was on the
       highway and let them know that I was in Monte Alto. And when I headed
       back to Elsa, the Jeep was going to Monte Alto.

Samudia then went to Weslaco, Texas, and turned the device on so that the party following

him would know where he was located. Once in a parking lot, Samudia turned the device

off. Samudia stated that he saw appellant driving the Jeep that was following him. On re-

direct examination, Samudia testified that he was certain that it was appellant who was

following the GPS signal, and on cross-examination, Samudia said that there was "no

doubt" that it was appellant.

       Leal testified that she has worked for Sheila for about four months. According to

Leal, she had never met appellant. Leal was delivering some paperwork to Sheila at her

residence one morning, and she saw a Cadillac XLR parked in front of Sheila's residence.

When Leal went back to her car, she noticed that the Cadillac XLR "was driving by real

slow right next to her car." Leal stated that the car looked suspicious and it was driving

slowly and then sped up once it passed by her car. Leal called a co-worker and asked if

she knew who drove a Cadillac XLR, and the co-worker stated that appellant did. Leal

identified appellant as the person she saw driving the Cadillac XLR that day.

       Leal followed the car. When she lost track of where the Cadillac XLR had gone,

Leal drove back to Sheila's street to make sure that there was nothing else suspicious.

Leal then saw the Cadillac XLR parked on Sheila's street again.

       Appellant denied knowing anything about the GPS device attached to Sheila's

vehicle. Appellant stated that tracking devices are installed in all company vehicles.

Appellant testified that he had no idea why the tracking device was installed on Sheila's

personal vehicle and said that was a question for his maintenance department. Appellant


                                            8
said that his maintenance department puts the tracking devices on all of his company's

vehicles; however, appellant acknowledged that Sheila's vehicle did not belong to the

company.

       Appellant stated that on one occasion, he did park his car on Sheila's street

momentarily in order to use his phone. Appellant claimed that he was passing by Sheila's

residence to "see if anybody was out there" and "make sure she was okay." Appellant said

that he did not recall leaving Sheila's residence and then returning. However, appellant

testified that he had only passed by Sheila's residence about three or four times since the

divorce. Appellant stated that he did not have a "legitimate" reason to be passing by

Sheila's house.

       Appellant admitted that he had contacted three men who Sheila dated after the

divorce, including Michael Regusa. Appellant stated that he followed Michael and "tried

to get him to pull over." Appellant claimed he wanted to talk to Michael but that he did not

stop. However, appellant later stated that he knocked on Michael's window. Appellant

claimed that he contacted Michael and the other men Sheila dated because he was

concerned about his children.

       When asked if he recalled blocking Sheila's vehicle, appellant stated that he had

"never blocked" Sheila. According to appellant, he was merely trying to get Sheila to

answer her phone and talk to Laurie. Appellant stated that Sheila would not pull over so

he "drove past her, got in front of her and slowed down [his] car and stopped and got out

of [his] car. And she was driving up, and she rolled down the window; and [she] said,

'What do you want.'" Appellant testified that Sheila was not blocked in because she could

have driven around his vehicle. Appellant stated that he did not prevent Sheila from re-


                                             9
entering the party but, instead, had noticed that she had been at her car for a long period

of time and went outside and asked her to come back inside the party. Appellant denied

that he was harassing or threatening Sheila.

        The trial court issued a final protective order and found that appellant had committed

family violence and that family violence is likely to occur in the future.7 The protective order

prohibited appellant from: (1) "committing family violence[,] ie: causing fear of bodily harm

or bodily injury to [Sheila], as defined in section 71.004 of the Texas Family Code"8; (2)

communicating directly in a threatening or harassing manner with Sheila; (3)

communicating a threat through any person to Sheila; (4) "engaging in conduct directed

specifically toward [Sheila] that is reasonably likely to harass, annoy, alarm, abuse,

torment, or embarrass [Sheila]"; (5) going to or near Sheila's residence for any other

purpose than transferring the children pursuant to the parties' divorce decree or written

agreement; and (6) going to or near Buena Suerte Home Health Care in McAllen, Texas.9

The trial court also ordered appellant "[n]ot to harass, threaten or disturb the peace of

[Sheila]."

                                     II. LEGAL AND FACTUAL SUFFICIENCY

        By four issues briefed as one, appellant contends that the evidence is legally and

factually insufficient to support the trial court's findings that he committed family violence




        7
            See T EX . F AM . C OD E A N N . §§ 81.001, 85.001.

        8
            See id. § 71.004 (Vernon 2008).

        9
           The trial court noted that appellant could com m unicate with Sheila at APEX pertaining to business
m atters, subject to the other provisions of the order. W e note that pursuant to an agreem ent with appellant,
Sheila was awarded a salary of $70,000 per year plus $17,000 to work at APEX. Sheila also agreed to
continue working at APEX.

                                                           10
and that family violence would occur again in the future.10 Specifically, in his first and third

issues, appellant argues that the evidence is factually insufficient to support the trial court's

findings that family violence occurred and would likely occur in the future; by his second

and fourth issues, appellant argues that the evidence is legally insufficient to support those

findings.

A. Standard of Review

        "A legal sufficiency challenge may only be sustained 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 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."11 In a legal sufficiency review, we

must view the evidence in the light most favorable to the verdict, crediting favorable

evidence if a reasonable fact-finder could and disregarding contrary evidence unless a

reasonable fact-finder could not.12 The final test for legal sufficiency must always be

whether the evidence at trial would enable reasonable and fair-minded people to reach the

verdict under review.13

        In a factual sufficiency review, we must consider and weigh all of the evidence in a

neutral light.14 The evidence is factually insufficient only if we conclude "that the verdict is

        10
             See id. §§ 81.001, 85.001.

         11
            Schaban-Maurer v. Maurer-Schaban, 238 S.W .3d 815, 823 (Tex. App.–Fort W orth 2007, no pet.)
(citing Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W .2d 328, 334 (Tex. 1998); Robert W . Calvert, "No
Evidence" and "Insufficient Evidence" Points of Error, 38 T EX . L. R EV . 361, 362-63 (1960)).

        12
             City of Keller v. W ilson, 168 S.W .3d 802, 807 (Tex. 2005).

        13
             Id. at 822.

        14
             Golden Eagle Archery, Inc. v. Jackson, 116 S.W .3d 757, 761 (Tex. 2003).

                                                       11
so against the great weight and preponderance of the evidence as to be manifestly unjust,

regardless of whether the record contains some evidence of probative force in support of

the verdict."15 To set aside the verdict, we must "detail the evidence relevant to the issue"

and then state why the evidence is "factually insufficient or is so against the great weight

and preponderance as to be manifestly unjust; why it shocks the conscience; or clearly

demonstrates bias."16

B. Analysis

       Appellant argues that the actions Sheila claims he committed did not "arise [sic] to

the level of 'family violence' as defined by the applicable code, or as interpreted by any

court in this state, and particularly by this [C]ourt." Appellant also asserts that his alleged

actions of "impeding movement on the roadway or at the party, the GPS tracking device,

calling [Sheila's] lovers/boyfriends and passing by [Sheila's] home" neither resulted "in

physical harm, bodily injury, assault, or sexual assault upon [Sheila]" nor placed Sheila in

fear of imminent physical harm, bodily injury, assault, or sexual assault.

       A trial court shall render a protective order if, after a hearing, it finds that family

violence has occurred and is likely to occur in the future.17 Family violence includes "an

act by a member of a family or household against another member of the family or

household . . . 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




       15
            Id.

       16
            Id. (internal quotations om itted).

       17
       T     EX .   F AM . C OD E A N N . §§ 81.001, 85.001.

                                                               12
measures to protect oneself."18 Our focus, therefore, is on the evidence regarding any act

by appellant that was a threat reasonably placing Sheila "in fear of imminent physical harm,

bodily injury, assault" and the likelihood that such threats, if made, would reoccur in the

future.19

       In this case, Sheila stated that after the marriage ended, appellant threatened her

on numerous occasions, and tape recordings of those alleged threats were played for the

trial court. Sheila testified that she felt threatened and feared for her safety. According to

Sheila, appellant stated that: (1) she could not go out with anyone else; (2) he was not

sure how he would respond if he saw her out with someone else; (3) he did not think he

could control himself if he saw her with someone else; and (4) he did not care if he was

arrested. Sheila stated that appellant told her that "he would always be a threat if [she]

went out with anyone" and that he could not be "trusted" if he saw her with someone or

someone was at her house.

       Sheila testified that she was afraid to allow guests to come to her residence

because appellant "repeatedly" told her that "he would be in that door or he would get them

on the way out the door." Sheila acknowledged that appellant had not broken down her

door, but explained that appellant had "chased" her ex-boyfriend when he left her

residence.

       Sheila testified that appellant "blocked" her vehicle from leaving her children's

school. Sheila described appellant as irate and stated that she feared for her safety and

felt threatened. She thought that appellant was going to pull her out of the vehicle. Sheila


       18
            Id. § 71.004(1).

       19
            See id. §§ 81.001, 85.001.

                                             13
called the police to report the incident. Appellant argues that Sheila's fear that he would

pull her out of the vehicle was unreasonable because he had "never before laid a hand on

her or harmed her in any form or fashion in the past." However, Sheila said that appellant

had violently thrown her out of the house when they were still married. After that incident,

Sheila interpreted appellant's request that she move away from him when he was angry

to mean that he might do it again if she went near him. Appellant also prevented Sheila

from re-entering a party and warned her that she better not be talking to anyone else

because he was observing her activities.

       There was evidence presented that appellant utilized a tracking device to monitor

Sheila's vehicle. Samudia testified that when he removed the tracking device and carried

it to various locations, he observed appellant driving a car registered to appellant's niece

following the signal. There was also evidence presented that appellant had threatened

people associated with Sheila, and Sheila testified that appellant assaulted his brother-in-

law after she informed appellant that the brother-in-law had mowed her lawn. In an

affidavit, admitted as petitioner's exhibit 2, Martin Pena II, Sheila's friend, stated that Jon

Scepanski, appellant's friend, had contacted him and informed him that appellant had hired

a private investigator to "watch" Sheila.

       Sheila testified that she had asked appellant not to "come by" her residence but that

appellant told her he would do what he wanted to do. Leal testified that she observed

appellant parked in his vehicle on Sheila's street. Leal became so concerned about

appellant's vehicle, she called another coworker and followed appellant. Appellant testified

that he did not have a "legitimate" reason to pass by Sheila's residence, but admitted he

had been parked on her street. On both occasions when appellant prevented Sheila from


                                              14
leaving, Sheila asked appellant to leave her alone and appellant refused. Sheila testified

that she has asked appellant to leave her alone numerous times and that after appellant

agreed to a mediation, she discovered the tracking device attached to her car.

        Viewing the evidence in the light most favorable to the verdict, crediting favorable

evidence if a reasonable fact-finder could and disregarding contrary evidence unless a

reasonable fact-finder could not, we conclude that the evidence is legally sufficient to

support the trial court's findings that family violence occurred and is likely to occur in the

future.20 We overrule appellant's first and third issues. Moreover, after considering and

weighing all of the evidence in a neutral light, we cannot conclude that the trial court's

findings are against the great weight and preponderance of the evidence as to be

manifestly unjust.21 We overrule appellant's second and fourth issues.

                                               IV. CONCLUSION

        We affirm the trial court's judgment.


                                                                                LINDA REYNA YAÑEZ
                                                                                JUSTICE


Delivered and filed the
30th day of August, 2010.



        20
            See City of Keller, 168 S.W .3d at 807; see also Clements v. Haskovec, 251 S.W .3d 79, 84 (Tex.
App.--Corpus Christi 2008, no pet.) (concluding that the appellant's behavior constituted fam ily violence, even
though he never actually struck his daughter and that appellant's threats to his wife and daughter and the fact
that he raised his fist at his daughter were "sufficient to im plicate his conduct as fam ily violence"); Siegert v.
Flannery, No. 04-03-00487-CV, 2004 Tex. App. LEXIS 6989, at **2-6 (Tex. App.–San Antonio Aug. 4, 2004,
no pet.) (m em . op.) (finding that the appellant's actions of post-divorce harassing and intim idation could have
been found to be threatening and to have reasonably placed the petitioner in fear of im m inent physical harm ,
bodily injury, or assault); Thompson v. Thompson-O'Rear, No. 06-03-00129-CV, 2004 Tex. App. LEXIS 5033,
at *4 (Tex. App.–Texarkana June 8, 2004, no pet.) (m em . op.) ("At som e point, harassm ent m ay transform
into an active threat.").

        21
             See Golden Eagle Archery, Inc., 116 S.W .3d at 761.

                                                        15
