                            COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                               NO. 02-14-00192-CV


DUDLEY MCAFEE                                                         APPELLANT

                                         V.

MONTE GLEN YANCEY                                                       APPELLEE


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          FROM COUNTY COURT AT LAW NO. 1 OF WICHITA COUNTY
                    TRIAL COURT NO. CCL-605-12-E

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                            MEMORANDUM OPINION 1

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      In two issues, appellant Dudley McAfee appeals the trial court’s final

protective order, contending that the evidence is legally and factually insufficient

to support it. We affirm.




      1
       See Tex. R. App. P. 47.4.
                               Background Facts 2

      Appellant has a romantic relationship with Karie Carr. Carr and appellee

Monte Glen Yancey previously dated each other. Their relationship produced a

child, Gregory, 3 in 2010, but it ended in 2012. Carr and appellee share Gregory’s

custody.

      Gregory’s preschool-aged soccer team played a match on a Saturday

morning in March 2014. Appellee coached the team, and appellant and Carr

attended the match. At the end of the match, appellant and appellee started

arguing with each other.

      According to appellee’s witnesses, the argument began when appellee

asked appellant to call him on the telephone because there was “something they

needed to talk about.” Specifically, appellee testified that he wanted to talk to

appellant about appellant’s kicking Carr’s residence door in and his “drinking and

driving with . . . kids in the car.” Appellee also testified that leading up to the

incident at the soccer field, he had been attempting for a while to reach appellant

and had asked Carr several times to have appellant call him.



      2
       The first part of this section presents the facts as told by witnesses called
by appellee. Appellant presented differing evidence, some of which we will detail
toward the end of the section. The trial court found that evidence presented by
appellant was not credible.
      3
       To protect the child’s identity, we use an alias. See Tex. R. App. P.
9.9(a)(3) (indicating that a child’s name is among “sensitive data” that should be
safeguarded in appellate proceedings).


                                         2
      Appellant responded by stating that he did not “need to [f-----g] call

[appellee] about nothing” and that he did not “answer to” appellee. 4 The dispute

quickly became heated as appellant and appellee stood face to face. Appellant

told appellee that appellee had “never met anybody” like appellant.

      Appellee, who did not raise his voice during the dispute (according to one

witness) but at some point said that he would “kick [appellant’s] ass,” attempted

to withdraw from the confrontation and apologized to bystanders for what had

occurred. But appellant continued screaming. Appellee told appellant that he

was not an eleven-year-old football player that appellant could intimidate. 5

      Appellant called appellee a “mother [f----r],” threw his sunglasses on the

ground, and asked appellee if he wanted to “go.” Appellant pushed appellee’s

chest and hit appellee’s chin. 6 Appellee then hit appellant, who landed on the

ground. Bystanders intervened; appellee held his hands up to indicate that he

was finished, but appellant repeatedly screamed that he would kill appellee,

continued to use profanity, and said that he knew where appellee lived or that he




      4
         One witness testified that appellant said that he did not have anything to
“[f-----g] say to [appellee].”
      5
       The record indicates that appellant has coached youth football.
      6
       The trial court admitted photographs of appellee’s chin, which was bruised
and discolored two days after the fight. Appellant testified that he never touched
appellee’s chin and that he did not cause the injury depicted in the photographs.


                                         3
could learn where appellee lived. 7 Appellee waited at the soccer field until police

arrived.

      In early April 2014, appellee filed an application for a protective order

aimed at shielding himself and Gregory from family violence by appellant. The

application stated that a protective order was in appellee’s best interest and that

appellant had

      committed acts that were intended . . . to result in physical harm,
      bodily injury, assault, or . . . were threats that reasonably placed
      [appellee] in fear of imminent physical harm, bodily injury, [or]
      assault . . . . [Appellant’s] acts therefore constitute[d] family
      violence.

            [Appellant’s] conduct was reasonably likely to harass, annoy,
      alarm, abuse, torment, or embarrass [appellee].

Among other acts, appellee sought to restrict appellant from communicating with

appellee or Gregory in a threatening manner, from harassing or annoying

appellee or Gregory, and from going to Gregory’s school or residence. To the

application, which sought temporary ex parte relief along with permanent relief,

appellee attached an affidavit.

      The day after appellee filed the petition, the trial court signed a temporary

ex parte protective order, finding that appellee “was in a dating relationship with

an individual who is in a dating relationship with [appellant]” and that there was a

danger of family violence unless the court restricted appellant from engaging in


      7
        Appellee estimated that appellant said twenty times that he was going to
kill appellee.


                                         4
certain acts.   The court set a trial date to determine whether to make the

protective order final. Appellant filed an answer in which he generally denied

appellee’s allegations.

      The trial court conducted a bench trial. Appellant testified that appellee

had approached him aggressively and confrontationally after the soccer match

and had said that he did not want appellant to be around Gregory. According to

appellant, he told appellee that he liked Gregory and said that Carr could “make[]

the rules” when Gregory was with her. Appellee accused appellant of kicking in

Carr’s door, and appellant admitted to kicking the door but said that he did not

“kick in” the door and was not attempting to get into Carr’s house. 8 Appellee also

accused appellant of drinking and driving with children in his car, but appellant

denied doing so.

      Appellant testified that at some point, Carr attempted to intervene so he

and appellee would stop arguing.         But appellee badgered appellant and

continued confronting him; he bumped appellant’s nose, tapped his chest with a

water bottle, and told him that he could kick his ass. Appellant then pushed

appellee (but did not attempt to hit him), and appellee hit appellant’s mouth,

causing it to bleed.      Appellant began saying, “I’m gonna get you for that.”

Appellee continued to taunt appellant, referring at one point to appellant’s youth

football coaching.   Appellant did not remember whether he had said that he

      8
        Appellant testified that he kicked the door because he was heartbroken
after believing that Carr was in her house with another man.


                                         5
would kill appellee, but he admitted that after appellee hit him, he said things that

he was not proud of.

      Carr testified that at the end of the soccer match, appellee “made a beeline

over to” appellant. Speaking forcefully, appellee told appellant that appellant

needed to call him and that he did not want appellant around Gregory. Carr

could discern that the argument was escalating, so she took Gregory away from

it. After she walked away some distance, she saw appellee approach appellant

chest to chest and appellant push appellee’s chest, but she did not see appellant

swing his fist at appellee. At the time, Carr was too far away to hear what the

men were saying to each other.        According to Carr, on multiple occasions,

appellee has made threats to her that concern appellant.

      After the parties rested, the trial court entered a final protective order. The

court found that appellant had committed dating violence against appellee

“because of [appellee’s previous] dating relationship with” Carr. The court also

found that such violence was likely to occur in the future and that a protective

order was in appellee’s best interest. The final order restricted appellant from

engaging in several acts toward appellee until April 2016, but unlike in the

temporary order, the court did not include Gregory as a “Protected Person.”

      On appellant’s request, the trial court entered findings of fact and

conclusions of law. Appellant brought this appeal.




                                         6
                            Evidentiary Sufficiency

      Appellant contends that the evidence is legally and factually insufficient to

prove the requirements for granting a protective order under the family code. A

trial court’s findings of fact have the same force as answers to jury questions and

are reviewable for legal and factual sufficiency of the evidence by the same

standards. 9 Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994); see MBM Fin.

Corp. v. Woodlands Operating Co., 292 S.W.3d 660, 663 n.3 (Tex. 2009).

      We may sustain a legal sufficiency challenge only when the record

discloses a complete absence of evidence of a vital fact, the court is barred by

rules of law or of evidence from giving weight to the only evidence offered to

prove a vital fact, the evidence offered to prove a vital fact is no more than a

mere scintilla, or the evidence establishes conclusively the opposite of a vital

fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998),

cert. denied, 526 U.S. 1040 (1999).      In determining whether there is legally

sufficient evidence to support the finding under review, we must consider

      9
        There is disagreement among our sister intermediate appellate courts as
to the proper standard of review to be applied in appeals from protective orders.
At least one court has held that because a protective order provides relief similar
to an injunction, the proper standard of review is abuse of discretion. See
Franklin v. Benton-Elam, No. 06-13-00126-CV, 2014 WL 1722165, at *7 (Tex.
App.—Texarkana Apr. 30, 2014, no pet.) (mem. op.). But other courts, including
this one, have applied legal and factual sufficiency standards of review to
appeals from protective orders. See, e.g., Clements v. Haskovec, 251 S.W.3d
79, 84 (Tex. App.—Corpus Christi 2008, no pet.); Jakobe v. Jakobe, No. 02-04-
00068-CV, 2005 WL 503124, at *1 n.4 (Tex. App.—Fort Worth Mar. 3, 2005, no
pet.) (mem. op.) (“We believe sufficiency of the evidence of the protective order
is more appropriately measured by legal and factual sufficiency contentions.”).


                                        7
evidence favorable to the finding if a reasonable factfinder could and disregard

evidence contrary to the finding unless a reasonable factfinder could not. Cent.

Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007); City of Keller

v. Wilson, 168 S.W.3d 802, 807, 827 (Tex. 2005). When the evidence offered to

prove a vital fact is so weak as to do no more than create a mere surmise or

suspicion of its existence, the evidence is no more than a scintilla and, in legal

effect, is no evidence. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.

2003), cert. denied, 541 U.S. 1030 (2004) (citing Kindred v. Con/Chem, Inc., 650

S.W.2d 61, 63 (Tex. 1983)).      More than a scintilla of evidence exists if the

evidence furnishes some reasonable basis for differing conclusions by

reasonable minds about the existence of a vital fact. Rocor Int’l, Inc. v. Nat’l

Union Fire Ins. Co., 77 S.W.3d 253, 262 (Tex. 2002).

      When reviewing an assertion that the evidence is factually insufficient to

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

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

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

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

a new trial ordered. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965).

      A trial court must render a protective order if it finds that family violence

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

§§ 81.001, 85.001(b)(1), .022 (West 2014). “Family violence” includes “dating

violence.” Id. § 71.004(3) (West 2014). Pertinent to this appeal, the family code


                                        8
defines dating violence as a violent act that is committed against a victim

“because of the victim’s marriage to or dating relationship[10] with an individual

with whom the actor is or has been in a dating relationship or marriage.” Id.

§ 71.0021(a)(1)(B) (emphasis added).

      Appellant challenges the trial court’s final protective order on two grounds.

He contends in his first issue that the evidence is legally and factually insufficient

to show that dating violence (and therefore family violence) occurred “because

of” appellee’s prior dating relationship with Carr, and he argues in his second

issue that the evidence is legally and factually insufficient to prove that such

violence is likely to occur in the future. See id. §§ 71.0021(a)(1)(B), .004(3),

85.001(a)(2).

The “because of” requirement

      The trial court’s forty-ninth finding of fact states, “Dating violence by

[appellant] was committed against [appellee] because of [appellee’s] dating

relationship with . . . Carr, with whom [appellant] is in a dating relationship . . . .”

Appellant contends that any violence he committed against appellee was not

“because of” appellee’s former dating relationship with Carr but was instead




      10
        A dating relationship is a “relationship between individuals who have or
have had a continuing relationship of a romantic or intimate nature.” Tex. Fam.
Code Ann. § 71.0021(b) (West 2014). Appellant does not dispute that he has a
dating relationship with Carr and that appellee previously had a dating
relationship with her.


                                           9
because of appellee’s concern about appellant’s relationship with Gregory. He

argues,

      [T]he testimony of [appellant and appellee] is remarkably consistent
      that the issue between them had to do with [a]ppellee’s dislike of
      [a]ppellant’s being around his son and alleged mistreatment of his
      son. . . .

             ....

           . . . Put simply and bluntly, the two men were not fighting over
      Ms. Carr. They were fighting over [a]ppellee’s son . . . .

      The record, however, supports the trial court’s finding that appellant’s and

appellee’s relationships with Carr motivated appellant’s violence against

appellee. Appellee testified that during the incident at the soccer field, he and

appellant exchanged verbal jabs about their romances with Carr. Specifically,

appellant accused appellee of sleeping “on the couch for the last three months”

of appellee’s past relationship with Carr. Appellee responded by stating that he

had “never slept on the couch unless [he had] chose[n] to,” that he “had some

video” (presumably of him and Carr together) if “[appellant] wanted to see it,” and

that Carr “didn’t have to bring another guy over when [appellee]” was dating her.

Appellant later testified that he had believed that Carr had been in her residence

with another man, which prompted him to kick her door. Carr told appellee about

the incident with the door, and appellee mentioned that incident during the

altercation at the soccer field. Appellant testified that he was “kind of ticked off

[that Carr] had told” appellee about the incident with the door.




                                         10
      Appellant explained that before appellee’s statement about the videos that

appellee had collected (or made) during his relationship with Carr, appellant was

attempting to leave, but when appellee mentioned the videos, appellant and

appellee “got nose to nose, and that’s when [appellant] lost [his] temper.”

[Emphasis added.] Appellant stated, “I’m tired of the texts and everything that he

sends her. And, you know, he’s mentioned [the videos] twice.” He testified, “I

didn’t get upset until [appellee] mentioned the videos.” [Emphasis added.]

      Thus, although appellant’s and appellee’s relationships with Gregory were

subjects of part of their conversation at the soccer field, by appellant’s admission,

appellee’s words about his prior relationship with Carr precipitated appellant’s

anger with appellee. We therefore conclude that under the standards described

above, the evidence is legally and factually sufficient to prove that appellant

committed violence “because of [appellee’s] . . . dating relationship with . . .

Carr.” See Tex. Fam. Code Ann. §§ 71.0021(a)(1)(B), .004(3); Martinez, 977

S.W.2d at 334; Garza, 395 S.W.2d at 823. We overrule appellant’s first issue.

Likelihood of future violence

      The trial court concluded that family violence from appellant to appellee is

likely to occur in the future.     Appellant contends that this conclusion was

erroneous. He argues that the fight at the soccer filed was an “isolated incident

of violence, uncoupled from circumstantial evidence of any other incidents or

behaviors.”   He also contends that appellee “initiated and maintained” the

confrontation. He asserts,


                                         11
      No history of inappropriate, harassing, threatening, or violent
      conduct between the men . . . was presented . . . . But for
      [a]ppellee’s approach of [a]ppellant at [Gregory’s] soccer game,
      there is no reason to believe the two men . . . would have had
      contact, let alone an established fact pattern to support a finding of
      future family violence.

      Appellee admitted that after the fight, appellant did not attempt to contact

him. He testified that while he was concerned that appellant would act violently

in the future, appellant had not done anything prior to the trial to indicate that he

would do so. As appellee argues, the record does not show any prior incidents

of violence between appellant and appellee.

      In its thirty-eighth finding of fact, however, the trial court determined that

appellant’s repeated threats to kill appellee comprised “evidence that family

violence is likely to occur in the future.”    Appellee’s witnesses testified that

appellant said many times that he would kill appellee and that he knew where

appellee lived or could discover where he lived. 11      When appellee’s counsel

asked him whether he was concerned for his safety, he responded by stating,

“Well, [when] a man tells you 20 times he’s gonna kill ya, you need to listen.”

      We conclude that the trial court, which considered witnesses’ descriptions

of appellant’s aggressive, out-of-control demeanor on the day of the fight (and

before that when he kicked Carr’s door) and viewed his demeanor at trial, could

have reasonably found that he meant what he said on the day of the altercation:

he intended to act violently in the future toward appellee just as he had on that

      11
        In his brief, appellant does not acknowledge his threats to kill appellee.


                                         12
occasion. See Coffman v. Melton, 448 S.W.3d 68, 74 (Tex. App.—Houston [14th

Dist.] 2014, pet. denied) (“Evidence of past violence can constitute sufficient

evidence that future violence is likely.”); 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 to sustain the award of a protective order.”); see also Collier v. State,

No. 12-13-00142-CV, 2013 WL 4769267, at *3 (Tex. App.—Tyler Sept. 4, 2013,

no pet.) (mem. op.) (affirming a protective order when the evidence showed one

act of physical violence coupled with explicit threats of future violence); Johnson

v. Johnson, No. 13-12-00080-CV, 2012 WL 3525655, at *3 (Tex. App.—Corpus

Christi Aug. 16, 2012, no pet.) (mem. op.) (holding that one act of violence plus

evidence of the appellant’s short temper justified a trial court’s finding that family

violence was likely to occur in the future).

      Applying the appropriate standards, we hold that the evidence is legally

and factually sufficient to support the trial court’s finding that family violence is

likely to occur in the future. See Tex. Fam. Code Ann. §§ 81.001, 85.001(a)(2);

Martinez, 977 S.W.2d at 334; Garza, 395 S.W.2d at 823.                  We overrule

appellant’s second issue.




                                          13
                                Conclusion

      Having overruled appellant’s issues, we affirm the trial court’s final

protective order.

                                              PER CURIAM

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.

DELIVERED: March 5, 2015




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