                                      IN THE
                              TENTH COURT OF APPEALS

                                      No. 10-09-00237-CV

                      IN THE INTEREST OF A.W.R., A CHILD




                               From the 378th District Court
                                    Ellis County, Texas
                                  Trial Court No. 62,517D


                               MEMORANDUM OPINION


        The trial court granted an application for protective order sought by Marilyn

Rushing against her ex-husband, John Rushing, for alleged abuse of their son, A.W.R.

John challenges: (1) the constitutionality of sections 81.005 and 81.006 of the Family

Code; (2) the denial of his motion to re-open evidence; and (3) the factual sufficiency of

the evidence to support the trial court’s finding of family violence.1 We affirm.




1        John filed a first amended motion and objection to informalities in the record, complaining of a
hearing transcript included in Marilyn’s appendix. Because this transcript is not part of the appellate
record, we cannot consider it. See Mitchell v. Citifinancial Mortg. Co., 192 S.W.3d 882, 883 (Tex. App.—
Dallas 2006, no pet.); see also GMAC v. Fleetwood Enters., No. 10-08-00055-CV, 2009 Tex. App. LEXIS
1913, at *6 n.1 (Tex. App.—Waco Mar. 18, 2009, no pet.) (mem. op.). John’s motion is granted.
                           CONSTITUTIONAL CHALLENGE

        In issue one, John contends that sections 81.005 and 81.006 of the Family Code

violate due process and equal protection rights.

       An applicant for a protective order may be represented by either a prosecuting

attorney or a private attorney. See TEX. FAM. CODE ANN. § 81.005(a) (Vernon 2008); see

also TEX. FAM. CODE ANN. § 81.006(1)-(2) (Vernon 2008); Ford v. Harbour, No. 14-07-

00832-CV, 2009 Tex. App. LEXIS 1796, at *17 (Tex. App.—Houston [14th Dist.] Mar. 17,

2009, no pet.) (mem. op.). Marilyn is represented by a private attorney.

       John argues that non-movants have greater rights when a prosecutor represents

the applicant.   Specifically, per Article 2.01 of the Code of Criminal Procedure, a

prosecutor must disclose exculpatory evidence. See TEX. CODE CRIM. PROC. ANN. art.

2.01 (Vernon 2005). A private attorney has no such duty. Thus, John maintains that

non-movants are treated disparately depending on the type of attorney representing the

applicant. By way of example, he points to the “silver platter doctrine,” which allowed

evidence seized by State officers during an illegal search, in which federal officers did

not participate, to be admitted in a federal criminal trial. See Elkins v. U.S., 364 U.S. 206,

208, 80 S. Ct. 1437, 1439, 4 L. Ed. 2d 1669 (1960) (abolishing “silver platter doctrine”).

       Marilyn contends that a protective order is a civil proceeding to which the Code

of Criminal Procedure does not apply. John argues that protective orders have criminal

and quasi-criminal consequences. See TEX. GOV’T CODE ANN. § 411.172(a)(12) (Vernon

Supp. 2009) (Ineligibility to obtain a concealed handgun license or carry a concealed




In re A.W.R.                                                                            Page 2
handgun); see also TEX. FAM. CODE ANN. § 86.0011 (Vernon 2008) (Requiring entry of the

protective order into the state-wide law enforcement information system).

       The Code of Criminal Procedure applies to criminal proceedings. See TEX. CODE

CRIM. PROC. ANN. art. 1.02 (Vernon 2005). Chapter 81 of the Family Code governs

protective orders rendered when family violence has occurred. In re Skero, 253 S.W.3d

884, 886 (Tex. App.—Beaumont 2008, orig. proceeding); see TEX. FAM. CODE ANN. §§

81.001 et. seq. (Vernon 2008). “An application for a protective order is a civil matter”

and is “in the nature of a civil injunction.” Amir-Sharif v. Hawkins, 246 S.W.3d 267, 271

(Tex. App.—Dallas 2007, pet. dism’d) (Declining to apply Article 46B of the Code of

Criminal Procedure, i.e., competency to stand trial, to protective orders); Harris v. State,

164 S.W.3d 775, 780 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d); see Baxter v. Texas

Dep’t of Human Res., 678 S.W.2d 265, 267 (Tex. App.—Austin 1984, no pet.) (Declining to

apply Article 38.23 of the Code of Criminal Procedure, i.e., the exclusionary rule, to

termination proceedings).

       Because protective orders are civil proceedings, they are governed by the Family

Code, not the Code of Criminal Procedure. See Amir-Sharif, 246 S.W.3d at 271; see also

Baxter, 678 S.W.2d at 267; Harris, 164 S.W.3d at 781. Thus, we cannot say that a non-

movant is treated disparately when the applicant is represented by a private attorney

versus a prosecuting attorney. We overrule issue one.

                          FAILURE TO REOPEN EVIDENCE

       In issue two, John challenges the denial of his motion to reopen the evidence to

introduce a report by the Grapevine Police Department.


In re A.W.R.                                                                          Page 3
       When it clearly appears to be necessary to the due administration of justice, the

court may permit additional evidence to be offered at any time. TEX. R. CIV. P. 270. In

determining whether to permit additional evidence under Rule 270, a court should

consider: (1) the movant’s diligence in obtaining the additional evidence; (2) the

decisiveness of this evidence; (3) whether the reception of the evidence could cause any

undue delay; and (4) whether the granting of the motion could cause any injustice.

McCuen v. Huey, 255 S.W.3d 716, 738 (Tex. App.—Waco 2008, no pet.) (quoting Saunders

v. Lee, 180 S.W.3d 742, 745 (Tex. App.—Waco 2005, no pet.)).

       At the protective order hearing, Dr. Thomas Deacon testified that, in December

2008, he examined A.W.R. for injuries to his eye and mouth. A.W.R. claimed to have

been slapped by John. Deacon diagnosed A.W.R. with a lip hematoma. Clinical social

worker Arlette Werthmann testified that she spoke with John who thought he might

have struck A.W.R. in the eye with his elbow while wrestling with A.W.R.

       John later filed a fourth amended motion to reopen, explaining that he received a

report from the Department of Protective and Regulatory Services on May 12, 2009,

which alerted him to a Grapevine Police Department report regarding the 2008 incident.

He received the police report on May 15. In the report, Detective D.W. Easley stated

that Dr. J. Coffman reviewed photographs of A.W.R.’s injuries and opined that they

were “not consistent with a slap,” but the “black eye was more consistent with a punch

or elbow hitting the eye.” Based on this opinion, the Tarrant County District Attorney’s

Office told Easley that a charge of injury to a child would not be accepted.




In re A.W.R.                                                                      Page 4
       John contends that Easley’s report shows that the 2008 incident is not abuse and

is inconsistent with A.W.R.’s allegations. Marilyn contends that the trial court properly

denied the motion because John failed to show either diligence or decisiveness.

       John contends that he sent several requests for the report and filed prompt

motions to reopen. However, he cannot show that the evidence was unavailable or

could not have been available at the time of the hearing. See Naguib v. Naguib, 137

S.W.3d 367, 373 (Tex. App.—Dallas 2004, pet. denied); see also In the Interest of A.A.E.,

No. 13-03-00528-CV, 2005 Tex. App. LEXIS 4419, at *6 (Tex. App.—Corpus Christi June

9, 2005, no pet.) (mem. op.). According to Easley’s report, John and his attorney met

with Easley on January 8. Easley spoke with Dr. Coffman on January 22. The hearing

occurred on January 23. John knew about Easley’s investigation. He could have called

Easley to testify at the hearing. Moreover, John filed his second amended motion to

reopen, with attached police records, nearly four months after the hearing. Third and

fourth amended motions followed.       A trial court does not abuse its discretion by

refusing to reopen a case after evidence is closed, particularly where the party seeking

to reopen has not shown diligence in attempting to produce the evidence in a timely

fashion. McNamara v. Fulks, 855 S.W.2d 782, 784 (Tex. App.—El Paso 1993, no pet.).

       Additionally, the excluded evidence does not address A.W.R.’s lip injury

diagnosed by Deacon. John presented some evidence, through Werthmann, suggesting

that he did not intentionally strike A.W.R. in the eye. This testimony contradicts Dr.

Deacon’s opinion.    Thus, the excluded evidence would merely add to the already

conflicting evidence regarding whether John intentionally struck A.W.R. On the other


In re A.W.R.                                                                       Page 5
hand, the evidence could also support a finding that A.W.R. was intentionally harmed

by a “punch.” The evidence is not decisive. See In re Estate of Huff, 15 S.W.3d 301, 309

(Tex. App.—Texarkana 2000, no pet.) (Additional evidence was not decisive because

“Intervenors had already offered some evidence of their attorney’s fees at trial.”); see

also Naguib, 137 S.W.3d at 373 (“[A]dditional evidence is not determinative, but

cumulative.”); Caro v. Sharp, No. 03-02-00108-CV, 2003 Tex. App. LEXIS 4943, at *20

(Tex. App.—Austin June 12, 2003, pet. denied) (mem. op.) (Appellants failed to

“demonstrate[] how contradicting already contradicted testimony would be decisive.”).

       Because John cannot satisfy all four requirements for reopening the evidence, we

cannot say that the trial court abused its discretion by denying John’s motion to reopen.

We overrule issue two.

                                FACTUAL SUFFICIENCY

       In issue three, John challenges the factually sufficiency of the evidence to show

that family violence is likely to occur in the future.

                                      Applicable Law

       At the close of a hearing on an application for a protective order, the court shall

find whether: (1) family violence has occurred; and (2) family violence is likely to occur

in the future. TEX. FAM. CODE ANN. § 85.001(a) (Vernon 2008). If the trial court finds

that family violence has occurred and is likely to occur in the future, the trial court shall

render a protective order. See id. at § 85.001(b)(1); see also TEX. FAM. CODE ANN. § 81.001.

“[E]vidence that a parent has engaged in abusive or neglectful conduct in the past




In re A.W.R.                                                                           Page 6
permits an inference that the parent will continue this behavior in the future.” In the

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

                                        Analysis

       Dr. Deacon testified that, on December 29, 2008, A.W.R. claimed that John

slapped him. Deacon observed a two-centimeter purple area on the left lower lip. He

saw no dark areas on the eyes. Photographs of A.W.R.’s injuries showed a bruise or

contusion. He diagnosed A.W.R. with a lip hematoma and suggested notifying the

Department. Marilyn filed her application for protective order on January 7, 2009.

Prior Acts of Violence Involving A.W.R.

       In July 2002, Dr. Deacon observed linear marks on A.W.R.’s bottom. A.W.R.

claimed to receive spankings from his step-mother and John. In August, Deacon spoke

with the Department. In a letter to the trial court, Patti Stovall with the Department

ruled the incident “unable to determine.” A.W.R. could not recall his last spanking.

John admitted spanking A.W.R, but denied leaving marks. He agreed not to spank

A.W.R. during visits.    A.W.R.’s teacher and day care director both stated that his

behavior was no different after visits with John, that he was aggressive, and that he had

behavioral problems. Marilyn claimed that A.W.R. is afraid of John and does not want

to visit him.

       John contends that this incident cannot be attributed to him because (1) the

evidence does not show whether A.W.R.’s bruising resulted from spankings given by

him, his wife, or both; and (2) the Department did not find the incident to be significant.

Stovall’s letter, however, contains John’s admission to spanking A.W.R. The record


In re A.W.R.                                                                         Page 7
does not explain why the Department waited until August to contact Deacon.

Nevertheless, the Department could not conclude that the incident did not occur. See

Comer v. Tex. Dep’t of Protective & Regulatory Servs., No. 03-03-00564-CV, 2004 Tex. App.

LEXIS 10759, at *5 n.6 (Tex. App.—Austin Dec. 2, 2004, pet. denied) (mem. op.) (“The

Department marks cases ‘unable to determine’ when it can neither substantiate nor rule

out an allegation.”); see also 40 TEX. ADMIN. CODE § 700.511(a)(4), (b)(4) (2010).

       A second incident occurred in February 2003. According to Stovall, red marks

were seen on A.W.R.’s thighs. A.W.R. claimed that John spanked him. He stated that

John visited him at school the day after the spanking. He was nice to John for fear that

John would spank him. A.W.R. told Stovall that he would be happy not to visit John

because John “lies like the devil,” and because Marilyn does not want him to visit.

A.W.R.’s teacher told Stovall that A.W.R. did not appear to be afraid of John, but had

winked and smiled at John. Marilyn told Stovall that A.W.R. does not want to visit

John because of how he is treated. John told Stovall that, because of prior allegations,

he checks A.W.R. for marks before returning him to Marilyn. John denied spanking

A.W.R. and told Stovall that A.W.R. often plays outdoors during visits.

       A third incident occurred in April 2007. According to Deacon, A.W.R. claimed

that his “dad” struck his back and stomach. Deacon observed tenderness on the trunk,

scapula, and left thoracic area. He diagnosed A.W.R. with back and side pain due to

trauma. On cross-examination, Deacon admitted that A.W.R. also refers to his step-

father as his “dad.” He testified that if John were out of the country during this time, it

would be difficult for him to be the perpetrator.


In re A.W.R.                                                                         Page 8
       John contends that this incident cannot be attributed to him because (1) he was

out of the country during this time; and (2) the record is unclear as to which “dad”

struck A.W.R. However, information that John was out of the country was presented

through his attorney during cross-examination of Dr. Deacon. It is not evidence. See

Collier Servs. Corp. v. Salinas, 812 S.W.2d 372, 377 (Tex. App.—Corpus Christi 1991, no

pet.). Moreover, as factfinder, the trial court bore the burden of assessing the credibility

of the witnesses and resolving any conflicts in the evidence. See In the Interest of M.G.M.,

163 S.W.3d 191, 202 (Tex. App.—Beaumont 2005, no pet.); see also Vongontard v. Tippit,

137 S.W.3d 109, 113 (Tex. App.—Houston [1st Dist.] 2004, no pet.). In doing so, the trial

court could have determined that John, not the step-father, struck A.W.R.

Prior Acts of Violence Involving Unrelated Individuals

       Colleen Tobey with the Department testified that there are other victims from

other counties who claim to have been abused by John. She explained that the findings

from those counties are consistent with her findings of abuse.

       In her letter, Stovall described a December 2002 incident, involving a physical

altercation between John and his former step-son.         The step-son alleged that John

“grabbed him by his collar, put his leg behind him and slammed him to the ground.”

John claimed that he was grabbed by the collar and he and the step-son both fell to the

ground. The step-son claimed to have sprained his back, but no marks were left. The

Department found the incident “unable to determine.”           See Comer, 2004 Tex. App.

LEXIS 10759, at *5 n.6; see also 40 TEX. ADMIN. CODE § 700.511(a)(4), (b)(4).




In re A.W.R.                                                                          Page 9
A.W.R.’s Credibility

       Jack Rushing, John’s brother, testified that he would not be surprised if A.W.R.’s

2008 injury resulted when he and Jack’s daughter collided while playing during a

Christmastime visit. He testified that A.W.R. also played outside on the trampoline.

       Werthmann testified that John told her that he was wrestling with A.W.R. and

may have struck him in the eye with his elbow. She suggested the possibility of

parental alienation, explaining that A.W.R. may be parroting information or quotes

from Marilyn. She testified that when a child feels pressure to choose sides, he may

experience ailments and aggression and may invent situations to avoid visitation. She

admitted that Marilyn may be trying to protect A.W.R. Werthmann lacked enough

material to determine whether parental alienation is occurring.

       Deacon admitted that A.W.R. has a history of unexplained fever and other

ailments. He testified that a child may lie about injuries and that A.W.R.’s version of

the 2008 events could be an attempt to please Marilyn. He did not suspect that A.W.R.

was being coerced or coached.

       Tobey testified that she has interviewed children in the past and had no reason to

believe that A.W.R.’s story is fictitious. Nor had the case worker ever indicated such a

belief. Tobey testified that she received no information refuting A.W.R.’s statements,

but admitted that John has not been interviewed by the Department.

       In her letter, Stovall stated, “At this time the investigation has not found

significant actions to warrant a request to the parents to modify the existing orders to




In re A.W.R.                                                                      Page 10
ensure the safety of the child.” She explained that the “injuries are not substantial and

the child’s actions do not match his statements in regards to his father.”

       The trial court was in the best position to evaluate the credibility and weight of

A.W.R.’s story and was entitled to believe that his accounts of the relevant events were

truthful. See M.G.M., 163 S.W.3d at 202; see also Vongontard, 137 S.W.3d at 113.

Opinions Regarding Abuse

       Tobey testified that there is a history of abuse and A.W.R. had made statements

of abuse, such as being hit by John. She opined that A.W.R. has been physically abused

by John. In fact, Tobey testified that the Department would be forced to intervene had

Marilyn failed to take action to protect A.W.R. Deacon also opined that A.W.R. was in

an abusive situation.

       Werthmann strongly recommended reinitiating contact between John and

A.W.R. under the guidance of a therapeutic person. She noted that A.W.R. responds to

John in a day care setting and through emails. She admitted that A.W.R. could also be

afraid, but she saw that A.W.R. wants a relationship with John. She did not believe that

A.W.R. was communicating in such a way as to indicate otherwise.              Werthmann

explained that John shows a compromising attitude and no concern about A.W.R. being

with Marilyn. This is the type of person that she would normally advocate placing the

child with because that person is more willing to foster visitation and communication.

       Again, as trier of fact, the trial court bore the burden of weighing the credibility

of the witnesses and resolving any conflicts in the evidence. See M.G.M., 163 S.W.3d at




In re A.W.R.                                                                        Page 11
202; see also Vongontard, 137 S.W.3d at 113. The trial court was entitled to resolve the

conflicting opinions of abuse either for or against John.

Summary

       After considering and weighing all the evidence, we conclude that the trial

court’s finding that family violence will likely occur in the future is not “so contrary to

the overwhelming weight of the evidence that the verdict is clearly wrong and unjust.”

Checker Bag Co. v. Washington, 27 S.W.3d 625, 633 (Tex. App.—Waco 2000, pet. denied);

see T.L.S., 170 S.W.3d at 166. Because the evidence is factually sufficient, we overrule

issue three.

                                     CONCLUSION

       Having overruled John’s three issues, we affirm the trial court’s order.




                                                        FELIPE REYNA
                                                        Justice
Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed August 11, 2010
[CV06]




In re A.W.R.                                                                        Page 12
