Opinion issued April 14, 2015




                                      In The

                               Court of Appeals
                                      For The

                          First District of Texas
                             ————————————
                               NO. 01-14-00457-CV
                            ———————————
                          SAM KUZBARY, Appellant
                                         V.
                         MIRIAM KUZBARY, Appellee


                    On Appeal from the 280th District Court
                             Harris County, Texas
                       Trial Court Case No. 2014-13468


                          MEMORANDUM OPINION

      Miriam Kuzbary applied for a protective order against her father, Sam

Kuzbary, alleging that she was in fear for her safety. After considering six hours of

testimony and multiple emails Sam had written to Miriam in the months before the

protective-order hearing, the trial court found that Sam had committed family
violence against his adult daughter in the past and was likely to do so again in the

future. Accordingly, the trial court granted Miriam’s application. Sam moved for a

new trial. The trial judge who issued the protective order recused herself; another

judge denied his motion.

      In four issues, Sam contends that the trial court erred by (1) “expanding the

definition of family violence,” (2) finding that Sam committed family violence in

the past, (3) finding that Sam was likely to commit family violence in the future,

and (4) engaging in conduct that led to the rendition of an improper judgment.

      We affirm.

                                   Background

      Miriam Kuzbary is a graduate student in mathematics at Rice University in

Houston. She attends Rice on a full scholarship and receives a salary from the

university for her work as a teaching assistant in the math department. She is 23

years old and is financially independent.

      Miriam’s parents have a home near Dallas. In 2012, her father accepted

employment in Houston. He moved into Miriam’s apartment for a couple of

months, staying with her during the week and returning to Dallas on the weekends.

According to Miriam, she eventually asked him to move out because Sam was

“drinking a lot” and “keeping [her] up until one or two in the morning screaming at

[her].” Sam moved into an extended stay hotel in the Houston area.


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        Tensions grew between the two and, in January 2013, Miriam asked Sam to

stop contacting her. He responded by email: “Do not provoke me to teach you a

life lesson. I am still equipped and capable, and no one will deter me from doing

so, if I deemed it warranted. No one.” In emails sent over the next two months, he

wrote, “I will be commanding your next order in life,” “watch your peep hole,”

that Miriam “will be subjected to necessary lessons,” and that she cannot “endure

. . . consequences” because of her “cowardliness.”

        When asked at the hearing if Sam had ever been physically abusive towards

her, Miriam responded, “Yes.” She testified that there had been multiple incidents

of repeated slapping and that “watch your peep hole” is something he would often

say before hitting her. Miriam testified about one event in particular. She stated

that, when she was 19, he pushed her against the refrigerator in his home and

“slapped [her] repeatedly back and forth between his hands.” She also testified

about a time when Sam put his hands on her neck and pushed her until she fell

over.

        In June 2013—five months after Miriam originally told Sam to stop

contacting her—she sent him an email stating, “You need to stop threatening me.”

He responded by writing, “I do not threaten, kid. I warn and execute sanctions

. . . .” The next day, Sam sent Miriam an email saying, “I will see your crying

silhouette at [sic] my next order of business with you.”


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      Miriam testified that Sam’s emails became “increasingly hostile and

nonsensical.” Also, he came by her apartment after being instructed not to contact

her. She testified that his continuous emails scared her and she believed he was

going to hurt her. Miriam contacted Rice University Police for assistance.

      The police incident report, admitted into evidence at the protective-order

hearing, states that the police contacted Sam in June 2013 and that Sam said any

future correspondence with his daughter would be limited to contact through an

attorney.

      In February 2014, Sam wrote an email to Miriam’s grandmother and copied

Miriam on the correspondence. He stated that Miriam “is still going to be up for a

lot of a— whipping” but that he would not “dirty [his] hands” with the matter;

instead, it would be by another. One week later, Sam emailed Miriam directly,

stating, “[Y]ou may think you got away with your bad conduct with mom. In your

dreams kid, only. You won’t. I am about to teach you that, the hardest way I am

capable of . . . I have no mercy on garbage kids like you.”

      Miriam again contacted the Rice University Police. The police called Sam

on February 11 and instructed him to stop contacting Miriam. He agreed by phone

but sent more emails to Miriam that same day. The campus police contacted Sam

several more times and asked him to stop contacting Miriam. Each time he agreed

but would continue sending emails contrary to his statements to the police. At


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times, his emails to Miriam would be within hours of his phone conversations with

the police officers instructing him not to contact her. Miriam described one email

as stating that “he would cut me into pieces and no one would be able to do

anything about it.” Another said “he would barbecue” her.

      Eventually, Sam began emailing Miriam’s professors and interfering with

her professional relationships. He also sent emails to other university

administrators and campus police officers.

      Miriam testified that, in her opinion, Sam “seem[ed] to be growing more and

more desperate and scary,” ignoring directives from Miriam and campus police to

end the contact, and sending emails “multiple times each day.” She stated that her

father’s actions “put [her] in fear of [her] physical and emotional safety.”

      Miriam filed an application for a protective order in March 2014, attaching

an affidavit that detailed past physical aggression and copies of various emails

from Sam. Additional emails were admitted into evidence during the hearing.

      At the conclusion of the hearing, the trial court announced its findings that

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

trial court granted Miriam’s application for a protective order. Sam was ordered

not to contact Miriam directly or through third-parties, not to go with 400 feet of

her residence, school, or work, to relinquish possession of his multiple firearms,

and to complete a battering intervention and prevention program, among other


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requirements. The trial court also ordered the suspension of Sam’s license to carry

a concealed handgun. Although requested to do so, the trial court did not issue

findings of fact or conclusions of law outside of those contained in the protective

order.

         Sam filed a motion for new trial, arguing that there was insufficient evidence

of past family violence or the likelihood of future violence, the trial court relied on

an incorrect definition of “family violence” that did not comport with the statutory

definition, the trial court erred in overruling evidentiary objections, and “the trial

court abused its discretion during the trial when the trial judge was ‘texting’ on a

mobile device because such a distraction led to the improper rendition” of a

protective order. The trial judge recused herself from ruling on the motion for new

trial. Another judge was appointed, and the motion was denied.

         Sam timely appealed.

                         Sufficiency of Evidence Challenges

         In his second and third issues, Sam argues that the evidence did not support

the trial court’s conclusions that Sam had committed family violence in the past or

that he was likely to do so again in the future.

A.       Standard of review

         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);


                                            6
Vongontard v. Tippit, 137 S.W.3d 109, 112 (Tex. App.—Houston [1st Dist.] 2004,

no pet.). When the party who does not have the burden of proof at trial challenges

the legal sufficiency of the evidence, we consider all of the evidence in the light

most favorable to the prevailing party, indulging every reasonable inference in that

party’s favor and disregarding contrary evidence unless a reasonable factfinder

could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); City of

Houston v. Hildebrandt, 265 S.W.3d 22, 27 (Tex. App.—Houston [1st Dist.] 2008,

pet. denied). “If there is any evidence of probative force to support the finding, i.e.,

more than a mere scintilla, we will overrule the issue.” Hildebrandt, 265 S.W.3d at

27 (citing Haggar Clothing Co. v. Hernandez, 164 S.W.3d 386, 388 (Tex. 2005)).

      When reviewing a factual sufficiency challenge, we examine all of the

evidence in the record and will set aside the trial court’s finding only if it is “so

against the great weight and preponderance of the evidence as to be clearly wrong

and unjust.” Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); Kroger Co. v.

Persley, 261 S.W.3d 316, 319 (Tex. App.—Houston [1st Dist.] 2008, no pet.);

Richardson v. Estate of Smith, No. 01-14-00034-CV, 2014 WL 6068427, at *2

(Tex. App.—Houston [1st Dist.] Nov. 13, 2014, no pet.) (mem. op.). The trier of

fact is the exclusive judge of which facts have been proven, which witness is

credible, and the weight to be given any witness’s testimony. Turner v. KTRK




                                           7
Television, Inc., 38 S.W.3d 103, 134 (Tex. 2000); Benoit v. Wilson, 239 S.W.2d

792, 796–97 (Tex. 1951).

      When there is conflicting evidence, the trier of fact may believe one witness

and disbelieve others. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986);

CCC Grp., Inc. v. S. Cent. Cement, Ltd., 450 S.W.3d 191, 196 (Tex. App.—

Houston [1st Dist.] 2014, no pet.). The trier of fact is permitted to resolve

inconsistencies in the testimony of any witness. McGalliard, 722 S.W.2d at 697;

CCC Group, 450 S.W.3d at 196. It may draw inferences from the facts and choose

between conflicting inferences. Ramo, Inc. v. English, 500 S.W.2d 461, 467 (Tex.

1973); Lakner v. Van Houten, No. 01-09-00422-CV, 2011 WL 1233381, at *3

(Tex. App.—Houston [1st Dist.] Mar. 31, 2011, no pet.) (mem. op.) (affirming

grant of protective order).

      An appellate court will not overturn a factfinder’s determination unless only

one inference can be drawn from the evidence and it is counter to the factfinder’s

resolution of that issue. Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 461

(Tex. 1992); Lakner, 2011 WL 1233381, at *3.

B.    Family code provisions concerning protective orders

      A court shall render a protective order if the court finds that family violence

(1) has occurred and (2) is likely to occur in the future. TEX. FAM. CODE ANN.

§§ 81.001, 85.001 (West 2014). “Family violence” is defined, in pertinent part, as


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      [A]n 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 . . . .

TEX. FAM. CODE ANN. § 71.004(1) (West 2014) (emphasis added). Thus, a family

member’s actions can meet the definition if they are intended to result in harm or

involve a threat that reasonably places the other family member in fear of

imminent harm. Boyd v. Palmore, 425 S.W.3d 425, 430 (Tex. App.—Houston [1st

Dist.] 2011, no pet.).

      “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.” Id.

C.    Past family violence

      In his second issue, Sam contends that the evidence was legally and factually

insufficient to establish that he committed family violence against Miriam in the

past. More specifically, Sam asserts that there was “no evidence of an overt

physical act” in the past.

      1.     Legal sufficiency

      The evidence, viewed in the light most favorable to the trial court’s finding,

shows that on at least three occasions Sam was physically aggressive with Miriam.

At least twice—after Miriam had reached the age of majority—Sam slapped her


                                         9
face repeatedly back and forth. On another occasion, he entered his adult

daughter’s bedroom, put his hands on her neck, and pushed her hard enough to

cause her to fall down. When asked at the hearing if Sam had been physically

abusive towards her, Miriam responded, “Yes.”

      Miriam’s testimony about these incidents provides legally sufficient

evidence of past family violence. Compare Vongontard, 137 S.W.3d at 113

(concluding that actions by ex-boyfriend, in which he “pushed” her on three

occasions, met equivalent definition for “dating violence”), and Dempsey v.

Dempsey, 227 S.W.3d 771, 778 (Tex. App.—El Paso 2005, no pet.) (stating that

ex-husband’s “act of pushing” his ex-wife “falls squarely within the definition of

family violence”), and Clements v. Haskovec, 251 S.W.3d 79, 85 (Tex. App.—

Corpus Christi 2008, no pet.) (holding that father’s actions, including when he

“raised his fist at his daughter” without striking her, was evidence of family

violence), with Thompson v. Thompson O’Rear, No. 06-03-00129-CV, 2004 WL

1243080, at *2–4 (Tex. App.—Texarkana May 12, 2004, no pet.) (mem. op.)

(dissolving protective order after noting that ex-husband was accused of verbally

harassing his ex-wife and sending emails that criticized her but that ex-wife

admitted he had neither physically harmed her nor threatened to do so). At a

minimum, evidence of Sam’s past physical aggression was legally sufficient to

conclude that Sam intended to place Miriam in fear of imminent physical harm, if


                                       10
not to actually harm her. Accordingly, we conclude that there is more than a

scintilla of evidence to show that Sam had committed acts of family violence in the

past.

        Sam suggests that these incidents occurred too long ago to be considered by

the trial court. However, he cites no authority for the proposition that acts of family

violence that occurred two to four years before the application for a protective

order are too remote to support the issuance of a protective order. Our review

indicates that they are not. See Dempsey, 227 S.W.3d at 773–78 (considering

actions by ex-husband five years before application for protective order and

holding that evidence was legally and factually sufficient to grant protective order).

        We conclude that the trial court’s finding of past family violence is

supported by legally sufficient evidence. Accordingly, we need not reach Sam’s

argument concerning whether his emails establish past violence.

        2.    Factual sufficiency

        Miriam testified that Sam had been physically abusive towards her in the

past. She testified that Sam had a history of repeatedly slapping her and, on at least

one occasion, he grabbed her by the neck and pushed her down.

        During Sam’s testimony, he discussed the incident in Miriam’s room when

he allegedly pushed her down. He testified, “Yes, I am rough and yes, I was rough




                                          11
with her.” He did not directly deny pushing her down. Instead, he offered, “I don’t

think I can do that. She’s a lot heavier than me.”

      The trial judge, as factfinder, was free to evaluate the credibility of the

witnesses and choose to believe that Miriam’s account of the past events was more

credible. McGalliard, 722 S.W.2d at 697; CCC Grp., 450 S.W.3d at 196. The trial

judge, likewise, was free to disagree with Sam’s characterization of the evidence

and to conclude that Sam had committed family violence. McGalliard, 722 S.W.2d

at 697; CCC Grp., 450 S.W.3d at 196. This finding is not so weak as to be clearly

wrong or manifestly unjust. See Ortiz, 917 S.W.2d at 772; Persley, 261 S.W.3d at

319. Thus, the trial court’s finding is supported by factually sufficient evidence.

      We overrule Sam’s second issue.

D.    Future family violence

      In his third issue, Sam contends that there was legally and factually

insufficient for the trial court to have found that he was likely to commit acts of

family violence in the future.

      In cases involving family-violence protective orders, evidence that a person

has engaged in abusive conduct in the past permits an inference that the person will

continue this behavior in the future. In re Epperson, 213 S.W.3d 541, 544 (Tex.

App.—Texarkana 2007, no pet.) (“Oftentimes, past is prologue; therefore, past

violent conduct can be competent evidence which is legally and factually sufficient


                                          12
to sustain the award of a protective order.”); Matter of Frasure, No. 05-13-01667-

CV, 2015 WL 459223, at *6 (Tex. App.—Dallas Feb. 4, 2015, no pet.) (mem. op.).

This Court has held that evidence of an on-going pattern of past violence is not

required; even a single event may suffice. Boyd, 425 S.W.3d at 432 (“The statutory

language of Title IV does not require that a likelihood finding be based on more

than one act of family violence.”); see also Davis v. Sampson, No. 01-10-00604-

CV, 2011 WL 6306639, at *6 (Tex. App.—Houston [1st Dist.] Dec. 15, 2011, no

pet.) (mem. op.).

      1.     Legal sufficiency

      The evidence, viewed in the light most favorable to the trial court’s finding,

shows that Sam had been physically aggressive with Miriam in the past, including

repeatedly slapping her and knocking her down after grabbing her neck. In addition

to past physical contact, there was extensive evidence regarding Sam’s email

communications with Miriam.

      Miriam and Rice University Police Officer Y. Avalos testified about

Miriam’s requests that the campus police contact Sam and instruct him to stop

contacting her, as well as the officers’ efforts to do so. The police incident report

recounts multiple occasions when the police instructed Sam to stop contacting

Miriam, Sam agreed to do so, then Sam sent Miriam additional emails in defiance




                                         13
of those instructions. On some occasions, the emails came within hours of the call

from the campus police.

      In his emails, Sam stated that he was “equipped” to teach Miriam a life

lesson and would not be stopped from doing so. Sam wrote that he was “about to

teach” Miriam a lesson “the hardest way I am capable of . . . I have no mercy on

garbage kids like you.” He further stated that “he would cut [her] into peaces [sic]

and no one would be able to do anything about it” and that “he would barbecue”

her. In response to her email instructing him to “stop threatening” her, he

responded, “I do not threaten, kid. I warn and execute sanctions . . . .” Miriam

testified that these emails scared her and she believed he was going to hurt her.

      In light of Sam’s past aggression and his harassing and threatening emails—

defying requests by Miriam and campus police to stop contact—there was legally

sufficient evidence from which the trial court could conclude that it was likely that

Sam, if not enjoined, would commit future acts of family violence against Miriam.

      2.     Factual sufficiency

      While past violence can be factually sufficient evidence to find a likelihood

of future violence, Boyd, 425 S.W.3d at 432, Miriam’s evidence was not limited to

past acts. Sam’s emails provided additional evidence.

      Sam testified that he did not intend his emails to be threatening. He

explained that they were meant to be “educational” and to address her “lies” and


                                         14
“deceit.” He also testified that English is his third language and that he often

“run[s] into problems with [his] choice of vocabulary.” He explained,

      In an attempt to avoid translating . . . from Arabic to English and try
      to recollect the vocabulary database that I have learned so far—and
      you can see how I’m trying to assemble the answer for you because
      my brain at time just do—go out of control and do operating in Arabic
      language and I need to be on the fly capable to translate my thoughts
      or my answers in a constructive . . .

      It was within the trial judge’s province to disbelieve Sam’s explanation that

the threatening tone in his emails was the result of translation errors. The trial

judge was free to infer from Sam’s emails that he intended to threaten Miriam.

Lakner, 2011 WL 1233381, at *4.

      There was evidence that Sam—who lived part-time in the Houston area—

had come to Miriam’s apartment after being instructed to have no contact with her

and had unsuccessfully attempted to do so again. Accordingly, the trial judge could

infer that Sam’s threats presented a risk of future harm. Cf. Davis v. Sampson, No.

01-10-00604-CV, 2011 WL 6306639, at *5 (Tex. App.—Houston [1st Dist.] Dec.

15, 2011, no pet.) (mem. op.) (concluding that threats by ex-boyfriend, who lived

in another state, “reasonably could be understood to threaten imminent physical

harm” because his texts indicated he was en route at time they were sent).

      The evidence of past violence and threats of future violence was not so weak

as to cause the trial court’s finding of a likelihood of future violence to be clearly

wrong or manifestly unjust. See Ortiz, 917 S.W.2d at 772; Persley, 261 S.W.3d at

                                         15
319. Thus, the trial court’s finding on this issue is supported by factually sufficient

evidence.

      We overrule Sam’s third issue.

                           Evidence of Emotional Harm

      In his first issue, Sam contends that there was an improper rendition of a

protective order against him because the trial court expanded the definition of

family violence to include threats of emotional harm by admitting otherwise

irrelevant evidence.

      We have already concluded that the evidence was legally and factually

sufficient to affirm a finding that Sam has committed family violence, as defined in

section 74.001 of the Texas Family Code, and that he is likely to commit family

violence in the future in the absence of a protective order. In light of these

conclusions, the issue of whether threats of emotional harm would also support the

issuance of a protective order is unnecessary to the resolution of this appeal and is,

therefore, moot.

      Further, to the extent Sam’s objection can be understood to challenge the

trial court’s ruling allowing testimony of “emotional and psychological” abuse and

“control,” the trial court’s ruling on the admissibility of such evidence will not be

overturned absent an abuse of discretion. See Serv. Corp. Int’l v. Guerra, 348

S.W.3d 221, 235 (Tex. 2011) (“We review a trial court’s decision to admit


                                          16
evidence for an abuse of discretion.”); In re J.P.B., 180 S.W.3d 570, 575 (Tex.

2005). An appellate court must uphold the trial judge’s evidentiary ruling if there is

any legitimate basis for it. Owens–Corning Fiberglas Corp. v. Malone, 972 S.W.2d

35, 43 (Tex. 1998).

      Sam asserted a relevancy objection to testimony about his “emotional and

psychological” abuse and “control” over Miriam. Specifically, he objected that

Officer Avalos, who assisted Miriam in directing Sam to cease contact, did not

have personal knowledge of any relevant information because she did not observe

him assaulting or threatening Miriam. Next, he objected to Officer Avalos reading

from an email he sent to her, stating that he “will not tolerate [the officer]

interfering” with his relationship with his daughter or telling him how to “raise and

conduct” himself with Miriam. He also objected to Miriam’s testimony that Sam

had removed $1,000 from her bank account. Miriam testified that the dispute over

the money was about her father “[c]ontrolling me to do what he wants” and that,

when she does not do so, “it escalates.”

      Evidence that is irrelevant is not admissible; on the other hand, evidence that

is relevant is admissible unless excluded by other rules or statutes. TEX. R. EVID.

402. Evidence is relevant if it has “any tendency to make the existence of any fact

that is of consequence to the determination of the action more probable or less

probable than it would be without the evidence.” TEX. R. EVID. 401. In determining


                                           17
relevancy, we look at the purpose for offering the evidence. A logical

connection—either direct or inferential—between the fact offered and the fact to

be proved satisfies the relevancy test. Clark v. Randalls Food, 317 S.W.3d 351,

357 (Tex. App.—Houston [1st Dist.] 2010, pet. denied); Serv. Lloyds Ins. Co. v.

Martin, 855 S.W.2d 816, 822 (Tex. App.—Dallas 1993, no writ.).

      We conclude that the trial court did not abuse its discretion in overruling

Sam’s relevancy objections. Miriam testified that Sam disregarded instructions

from her and campus police to cease contact with her and that she believed the

harassment would continue unless a protective order was issued. Officer Avalos’s

testimony was relevant to that assertion. Further, Miriam testified that her

relationship with her father was deteriorating during this time and he was

becoming “increasingly hostile and nonsensical.” Relatedly, she averred that Sam’s

emails were “growing more and more desperate and scary” and were placing her

“in fear of [her] physical and emotional safety.” Evidence that Sam removed a

substantial amount of money from the working student’s bank account was

relevant to the assertion of escalating tensions.

      Having concluded that the trial court did not err in overruling Sam’s

relevancy objections, we overrule Sam’s first issue.




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                               Trial Judge’s Conduct

      In his final issue, Sam contends that the trial judge was texting during his

testimony. He argues that her actions “undoubtedly diminished [her] ability to fully

listen to and consider [his] testimony during trial” and likely caused the “rendition

of an improper judgment.” We understand Sam’s contentions to either assert a

sufficiency challenge or to challenge the denial of his new-trial motion, in which

he argued the same point.

      Having already concluded that the evidence was legally and factually

sufficient to support the trial court’s findings and the issuance of a protective order,

we will address whether the second judge erred in denying Sam’s motion for new

trial based on the texting allegation.

A.    Standard of review

      A court has broad discretion to grant a motion for new trial and may do so

“for good cause.” TEX. R. CIV. P. 320; In re Columbia Med. Ctr. of Las Colinas,

Subsidiary, L.P., 290 S.W.3d 204, 210 (Tex. 2009). The denial of a new-trial

motion is reviewed for abuse of discretion. Waffle House, Inc. v. Williams, 313

S.W.3d 796, 813 (Tex. 2010); Sozanski v. Plesh, 394 S.W.3d 601, 604 (Tex.

App.—Houston [1st Dist.] 2012, no pet.). A trial court abuses its discretion if it

acts without reference to any guiding rules or principles or fails to correctly




                                          19
analyze or apply the law. Celestine v. Dep’t of Family & Protective Servs., 321

S.W.3d 222, 235 (Tex. 2010); Sozanski, 394 S.W.3d at 604.

B.    Reviewing judge did not abuse discretion

      Sam submitted an affidavit, attached to his motion for new trial, alleging that

he testified for approximately 30 minutes at the protective-order hearing and that

“[o]n at least three separate occasions, while [he] sat in the witness chair testifying

in [his] defense, [he] viewed [the trial judge] ‘texting’ on what appeared to be a

cell phone . . . .” Sam argued that the activity distracted the judge from hearing his

testimony. Thus, he asserted that the judge was unable to process enough of his

testimony to understand his side of the story or evaluate his credibility.

      Sam offered no evidence regarding the length of time he alleges the judge

was “distracted” by each text. He offered no evidence regarding whether these

were quick replies or lengthy communications. Nor have we been told which

portions of Sam’s testimony he alleges were compromised. Cf. Menard v. State,

193 S.W.3d 55, 60 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (stating that,

on allegation that juror had been sleeping and missed testimony, “trial court should

consider whether ‘the sleeping juror missed large portions of the trial or [whether]

the portions missed were particularly critical.’” (citing United States v. Freitag,

230 F.3d 1019, 1023 (7th Cir. 2000))).




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      At the conclusion of the protective-order hearing, the trial judge specifically

addressed Sam’s characterization of his daughter’s behavior as involving “deceit”

and “lies.” She stated that she did not find that the evidence supported those

assertions. She also called into question Sam’s contention that his emails may have

been misconstrued due to translation errors. These statements by the trial judge—

specifically addressing the contentions Sam made while testifying—belie his

allegation that she had not effectively heard his testimony.

      Given the lack of evidence developed on the issue and the trial court’s

contemporaneous statements demonstrating comprehension and recall of Sam’s

testimony, we conclude that the reviewing judge did not abuse his discretion in

denying Sam’s new-trial motion on this issue.

                                    Conclusion

      We affirm the judgment of the trial court.




                                              Harvey Brown
                                              Justice

Panel consists of Chief Justice Radack and Justices Brown and Lloyd.




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