Derrick Fontenot v. Janell Fontenot ( 2023 )

Affirmed in Part and Reversed in Part and Opinion filed April 27, 2023.
In The
Fourteenth Court of Appeals
NO. 14-21-00451-CV
DERRICK FONTENOT, Appellant
V.
JANELL FONTENOT, Appellee
On Appeal from the 280th District Court
Harris County, Texas
Trial Court Cause No. 2021-22098
OPINION
Appellant Derrick Fontenot (“Derrick”) appeals a protective order entered in
favor of Janell Fontenot (“Janell”) and Derrick and Janell’s child, N.F.1 In six issues
we have reorganized, Derrick argues: (1) the trial court erred when it granted relief
not requested in Janell’s live pleading; (2) the district court lacked subject-matter
1
We use initials to protect the minor’s identity. See Tex. R. App. P. 9.8 cmt; Dolgener v.
Dolgener, 651 S.W.3d 242, 247 n.3 (Tex. App.—Houston [14th Dist.] 2021, no pet.); see also
Tex. Fam. Code Ann. § 109.002(d). At the time of the final hearing, N.F. was one year old.
jurisdiction in this case; (3) the trial court denied him due process of law; (4) there
was legally and factually insufficient evidence to support the protective order for
N.F.; (5) there was legally and factually insufficient evidence of a danger of future
violence; and (6) there was legally and factually insufficient evidence to support a
protective order for a period longer than two years. We reverse in part the trial
court’s order to the extent it protects Janell because Janell’s pleading did not request
such relief and the issue was not tried by consent. We affirm in part the remainder
of the trial court’s order as challenged on appeal.
I. BACKGROUND
On April 14, 2021, Janell filed an application for a protective order for the
benefit of N.F. in the 280th District Court of Harris County, Texas. Janell amended
her application twice, and in her live pleading, alleged that Derrick had engaged in
conduct that constitutes family violence against N.F. and that good cause exists to
prohibit Derrick from communicating with N.F. except through Derrick’s attorney
or a person appointed by the court. Janell further alleged that Derrick committed an
act constituting a felony offense involving family violence against Janell and N.F.
and that Derrick caused serious bodily injury to Janell and N.F.; based on these
allegations Janell requested that the protective order exceed a two-year term. In her
second amended petition, Janell noted for the first time that a suit for the dissolution
of Janell and Derrick’s marriage was pending in the 246th District Court of Harris
County. Janell’s live pleading requested a protective order for N.F., defining the
“protected person” sought under the protective order only as N.F.
Derrick filed a plea to the jurisdiction, arguing that the trial court lacked
jurisdiction because divorce proceedings were pending in the 246th District Court
when Janell filed her application for a protective order in the 280th District Court.
The trial court denied Derrick’s plea.
2
On June 7, 2021, the 280th court held a final hearing on Janell’s petition for a
protective order. At the final hearing, the trial court received testimony from Janell,
Corey Bruno, April Sandoval, Jonathan Swanson, Martha Torres, Eric Trumbetta,
Joshua Barrese, Brian Mainor, and Andrew Bailey.2
A. FINAL HEARING
1. Janell
Janell testified that she was seeking a protective order for herself and N.F.,
that she and Derrick began dating in 2017 and married in February of 2019, that
Derrick was physically and emotionally abusive towards her during their
relationship, and that they separated in October 2020. Janell testified of instances of
violence concerning Derrick occurring on different dates. Janell also testified that
she was concerned that family violence was likely to occur again in the future.
a. December 14, 2020
According to Janell, on the morning of December 14, 2020, she told Derrick
that she needed space and asked him to leave her residence. Janell testified that
during the conversation that followed, Derrick “attacked me and grabbed me by the
arms,” “shook me . . . vigorously,” and eventually “threw me against the couch after
I told him he was hurting me.” After Janell continued to ask Derrick to leave, Derrick
choked her for “about a half a second or so,” during which Janell’s breathing was
restricted.
Janell explained that Derrick was supposed to take N.F. to daycare that day.
Janell asked Derrick multiple times to take N.F. and leave. Eventually, Derrick
picked up N.F., and Janell believed Derrick was getting ready to go, when they
started talking and arguing. According to Janell, Derrick then pulled her in closer
2
Bailey was Janell’s lawyer in the trial court. Bailey testified regarding his attorney’s fees.
3
and bit her in the forehead. After Janell broke free from Derrick, Derrick threw Janell
“on top of the baby gate that was near upstairs,” while holding N.F. with the other
hand. After Derrick made his way outside with N.F., Janell followed them. Janell
asked Derrick to give N.F. back to her “for a second” and reached out for N.F., at
which point Derrick attempted to slap Janell but instead slapped N.F. in the face.
When Janell realized Derrick had struck N.F., she hit Derrick and Derrick slapped
Janell across the face. Derrick then placed N.F. in the vehicle and Janell started
“clawing at his hands to get his hand off the seat belt buckle,” at which point Derrick
began to strangle Janell. Janell testified Derrick strangled her “a while,” for
“[p]robably two, three seconds.” Janell stated she had cuts and swelling from the
strangulation resulting from the altercation with Derrick.
Janell introduced into the record a criminal charge filed against Derrick by her
for assault of a family member by impeding her breathing, listing the date of the
offense as December 14, 2020. She also introduced text messages exchanged
between herself and Derrick on December 16 and 17 of 2020. In the text messages,
Janell and Derrick discuss the incident where Derrick accidentally struck N.F. and
Janell also mentions that Derrick choked her that day.
b. August 2020
Janell testified that she and Derrick left a friend’s house in Derrick’s car, and
that Derrick was really drunk and rude. Janell stated that she asked Derrick to let her
out of the car, which he eventually did, but Janell left her wallet behind in the vehicle.
Shortly after, Derrick pulled the car over on the side of Texas State Highway 288.
Janell walked towards the car and threw her phone at Derrick, which struck him in
the face and “kind of grazed his ear and it cut him.” According to Janell, Derrick
then attacked her by pounding, stomping, and kicking her and said he was going to
kill her.
4
c. Other Instances of Violence
Janell also testified that there was other abuse, with the first instance occurring
when she was pregnant, and abusive conduct occurring “maybe like once a month.”
Janell testified that she felt that Derrick was not in control of his anger “[a] lot of the
times” and that Derrick would “admit to what he’s done and then we’ll go back to it
again.”
Janell testified to other instances of violence when she was physically attacked
by Derrick, including once when she was nursing N.F. and he pushed both Janell
and N.F. during an argument, and on another occasion, five days after N.F. was born,
when Derrick pushed her and “wanted to wrestle and fight” Janell for N.F.’s onesie,
then took the onesie from her and slapped her across the face with it. Janell also
testified that in November of 2018 Derrick sexually assaulted her once at a
Thanksgiving party in 2018 by having her perform oral sex on him against her will
but that she did not report it.
2. Bruno
Deputy Bruno is the custodian of records for Harris County Constable’s
Office Precinct 2. She testified concerning the records of calls for service made to
the precinct related to Janell and Derrick.3 Bruno testified that the records showed
that calls were made on December 13, 2020; two calls for service on December 21,
2020; January 4, 2021; and January 13, 2021.
3. Sandoval
Deputy Sandoval of the Harris County Constable’s Office Precinct 2 testified
that she responded to a call to Janell and Derrick’s home on December 13, 2020,
3
While the call records were admitted into evidence by the trial court, they do not appear
in the record on appeal because they were not given to the court reporter.
5
after their neighbors reported a disturbance. Sandoval testified she did not witness
any signs of violence on that night, and when asked about violence on that night and
in the past, Janell told Sandoval there was no violence that evening and answered
“no” to whether there had been violence in the past. Sandoval testified she did not
speak with Derrick that evening but that another deputy did, and that deputy would
have more knowledge about what happened.
4. Swanson
Swanson is Derrick’s best friend. Swanson testified that in 2020 Derrick
called Swanson and asked him to meet him on the side of Highway 288. Swanson
testified that, prior to the telephone call, Derrick and Janell had been at his home
playing cards with Swanson and his girlfriend, Dominique Smith. According to
Swanson, Derrick told him on the phone that Janell was “putting her hands on him
and harassing him” during Janell and Derrick’s drive home. Swanson drove to Janell
and Derrick’s location and witnessed Janell “beating on” Derrick, punching him in
his head, his face, the back of his neck, and his eardrum, causing Derrick to suffer a
busted eardrum. Derrick introduced photos from that evening showing him bleeding
from his earlobe near an earring. Swanson further stated that Janell did not appear
to have been physically assaulted and that he witnessed Janell “taking all of
[Derrick’s] belongings, his phone [and] throwing it everywhere.”
5. Torres
Deputy Torres of the Harris County Constable’s Office Precinct 2 spoke with
Janell on or about January 7, 2021, regarding Janell’s desire to file for a protective
order against Derrick and Janell’s allegations about an incident which took place on
December 14, 2020. Torres met with Janell about the December 14, 2020, incident
on January 8, but did not notice any injuries on Janell, and testified she would have
6
noted any injuries in the report.4 Torres testified that Derrick told her Janell’s
allegations were false and that she initially believed Derrick; however, Torres no
longer believed Derrick after reading text messages between Derrick and Janell.
6. Trumbetta
Trumbetta met Derrick while they both served in the military. He testified
regarding the Thanksgiving party in November of 2018 attended by Derrick and
Janell. According to Trumbetta, he was with Derrick for the entire time during the
party and did not recall Derrick making any sexual advances to Janell or doing
anything sexually improper, but that he left the party prior to Derrick and did not
know what might have happened after he left. Trumbetta also testified that he did
not go into the bathroom with Derrick, or witness Derrick go into the bathroom with
Janell, and that Derrick suffered an injury to his eardrum while in the military.
7. Barrese
Barrese also served with Derrick in the military and lived with Janell and
Derrick for a period of time while they were stationed in Anchorage, Alaska. Barrese
testified that he picked up Janell and Derrick from a Thanksgiving party in
November 2018 and drove them home because Janell and Derrick were unable to
drive. Barrese did not witness any evidence that Derrick had sexually assaulted
Janell and denied he made comments suggesting that Derrick had done so. Barrese
also did not witness any anger, yelling, or any sign of an argument or wrongdoing.
Barrese testified Janell was intoxicated and vomited in the car. According to Barrese,
Derrick asked him to testify in Derrick’s defense because Janell alleged that Derrick
raped her the evening of the Thanksgiving party.
4
Officer Torres testified she first spoke with Janell over the phone on January 4, 2021,
regarding Janell’s desire to file for a protective order against Derrick. Officer Torres told Janell
that she would not be able to do that at that time because Janell was out of the country.
7
8. Mainor
Mainor also served with Derrick in the military and was also present at the
2018 Thanksgiving party. Mainor testified Janell became intoxicated, felt sick, and
vomited in the bathroom. According to Mainor, “Font” and “Jacob Savage” assisted
Janell to the bathroom. Mainor did not witness or believe that a sexual assault had
taken place, but acknowledged that Janell was in another room on the second floor
while he was not on the second floor, and that Janell was also in the restroom when
he was not in the restroom.
B. TRIAL COURT’S RULING
On June 16, 2021, the trial court entered a protective order protecting both
N.F. and Janell, finding that family violence had occurred, that it is likely to occur
in the future, and that Derrick committed an offense constituting a felony offense
involving family violence against Janell. See Tex. Fam. Code Ann. § 85.001. The
trial court’s order provides that it is in effect as to Janell for twenty-five years and
as to N.F. until N.F. reaches eighteen years of age. The trial court’s order further
ordered Derrick to attend counseling and undergo a psychological evaluation. On
September 26, 2021, Derrick filed an amended motion to transfer the protective
order to the court where the divorce was filed and to vacate the judgment.5 This
appeal followed.
5
Derrick requested findings of fact and conclusions of law, but he did not file a motion for
new trial or other motion challenging the trial court’s June 16, 2021 judgment. The trial court’s
plenary power expired on July 16, 2021. See Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10
S.W.3d 308, 310 (Tex. 2000) (“A trial court retains jurisdiction over a case for a minimum of thirty
days after signing a final judgment.”); In re Gillespie, 124 S.W.3d 699, 703–04 (Tex. App.—
Houston [14th Dist.] 2003, orig. proceeding) (en banc) (holding that a request for findings of fact
and conclusions of law extends the deadline for the filing of a notice of appeal but not the trial
court’s plenary power); see Tex. R. Civ. P. 329b. Derrick filed his motion to vacate judgment on
September 27, 2021, after the trials court’s plenary power expired. Thus, the trial court did not
have plenary power when Derrick filed his motion to vacate, rendering Derrick’s motion moot.
8
II. REQUESTED RELIEF
In his first issue, Derrick argues that the trial court erred in granting a
protective order in favor of Janell because Janell’s live pleading did not request that
Janell be a protected person under the order. Janell argues that her pleading requested
this relief and, in the alternative, that the issue was tried by consent. Derrick argues
that the trial court also granted relief that was not requested by Janell when it ordered
Derrick to attend counseling and undergo a psychological evaluation. Finally,
Derrick argues the trial court erred in granting attorney’s fees for Andrew Bailey
when Janell requested attorney’s fees be awarded to Yalda Bayley.
A. APPLICABLE LAW & STANDARD OF REVIEW
The Family Code provides that in instances of family violence “by a member
of a family or household against another member of the family or household,” “an
adult member of the family or household may file an application for a protective
order to protect the applicant or any other member of the applicant’s family or
household.” See Tex. Fam. Code Ann. §§ 71.004(1), 82.002(a).
Under Texas Rule of Civil Procedure 301, a trial court’s judgment must
conform to the pleadings. Tex. R. Civ. P. 301. Pleadings must give reasonable notice
of the claims asserted. SmithKline Beecham Corp. v. Doe, 903 S.W.2d 347, 354–55
(Tex. 1995). As a reviewing court, we are to liberally construe the petition to contain
any claims that reasonably may be inferred from the specific language used in the
petition and uphold the petition as to those claims, even if an element of a claim is
not specifically alleged. See id. In making this determination, however, we cannot
use a liberal construction of the petition as a license to read into the petition a claim
that it does not contain. Moneyhon v. Moneyhon, 278 S.W.3d 874, 878 (Tex. App.—
Houston [14th Dist.] 2009, no pet.). The petition must give fair and adequate notice
of the claims being asserted, and if we cannot reasonably infer that the petition
9
contains a given claim, then we must conclude the petition does not contain the
claim. See SmithKline Beecham Corp., 903 S.W.2d at 354–55.
Unpleaded claims or defenses that are tried by express or implied consent of
the parties are treated as if they had been raised by the pleadings. Roark v. Stallworth
Oil & Gas, Inc., 813 S.W.2d 492, 495 (Tex. 1991); see Tex. R. Civ. P. 67. Trial by
consent “can cure lack of pleading, but an issue is not tried by consent merely
because evidence regarding it is admitted.” Bos v. Smith, 556 S.W.3d 293, 306–07
(Tex. 2018). To determine whether an issue was tried by consent, the court must
examine the record not for evidence of the issue, but rather for evidence of trial of
the issue. Id. at 307. A party consents to trial of an unpleaded issue when evidence
on the issue is developed under circumstances indicating that both parties understood
what the issue was in the case, and the other party failed to make an appropriate
complaint. See Ingram v. Deere, 288 S.W.3d 886, 893 (Tex. 2009) (“When both
parties present evidence on an issue and the issue is developed during trial without
objection, any defects in the pleadings are cured at trial, and the defects are
waived.”). If a party allows an issue to be tried by consent and does not raise the lack
of pleading before submission of the case, then the party may not raise the pleading
deficiency for the first time on appeal. In re I.A.B.N., No. 01-22-00306-CV, 2022
WL 4540813, at *4–5 (Tex. App.—Houston [1st Dist.] Sept. 29, 2022, no pet.)
(mem. op.).
“Trial by consent is intended only in the exceptional case where the record
clearly reflects the parties’ trial of an issue by consent.” See Guillory v. Boykins, 442
S.W.3d 682, 690 (Tex. App.—Houston [1st Dist.] 2014, no pet.). An issue is not
tried by consent if the evidence presented on that issue is also relevant to other issues
raised by the pleadings. King v. Lyons, 457 S.W.3d 122, 127 (Tex. App.—Houston
[1st Dist.] 2014, no pet.). The trial-by-consent doctrine is “not intended to establish
10
a general rule of practice,” and it “should be applied with care.” Guillory, 442
S.W.3d at 690. Thus, the doctrine should not be applied in a “doubtful situation.”
RE/MAX of Tex., Inc. v. Katar Corp., 961 S.W.2d 324, 328 (Tex. App.—Houston
[1st Dist.] 1997, pet. denied).
B. PROTECTIVE ORDER FOR JANELL
The protective order granted by the trial court states “In this order, ‘Protected
Person’ means [Janell], and [N.F.],” and thus, protects both N.F. and Janell, the
applicant.
The Family Code does not provide that “the applicant” for a protective order
under the Family Code automatically seeks a protective order on his or her behalf
by filing for a protective order. Cf. Tex. Fam. Code Ann. §§ 71.004(1), 82.002(a).
Here, Janell’s live pleading stated:
This Application for a Protective Order is brought by Janell Fontenot,
Applicant, who is a resident of Harris County, Texas. This Application
for a Protective Order is brought for the protection of [N.F.], who is a
resident of Harris County, Texas.
...
Applicant is the spouse of Respondent, and a copy of the decree
dissolving the marriage is unavailable to Applicant at this time.
The child, [N.F.], for whom a protective order is sought is not subject
to the continuing jurisdiction of any court.
Applicant and Respondent had a dating relationship as defined in
section 71.0021(b) of the Texas Family Code.
...
7. Request for Protective Order
In this application, "Protected Person" means [N.F.]
Applying the fair-notice pleading standard, we conclude that Janell’s pleading
only requested a protective order for N.F. and did not request a protective order for
11
Janell. See SmithKline Beecham Corp., 903 S.W.2d at 354–55.
Janell also argues that the issue was tried by consent. At the final hearing, the
following colloquy occurred after Janell testified that she was requesting a protective
order on her behalf against Derrick:
[Derrick’s counsel]: Very quickly. The pro -- the
application is clearly requesting
protection for [N.F.]. Only --
[Janell’s counsel]: Yes.
[Trial Court]: I’m sorry, sir?
[Derrick’s counsel]: I think we’re on the same page. The
protection was protection order -- for
[N.F.]. I just wanted to make sure I was
right about that.
[Janell’s counsel]: The protective order is a request for
[Janell] -- for [Janell] and her young
child.
[Derrick’s counsel]: It doesn’t say that, Judge. It clearly
says --
[Janell’s counsel]: It does.
[Derrick’s counsel]: It says the protective order is not for
the protection of [N.F.]
[Janell’s counsel]: It does not. Let me pull up the
pleading.
[Trial Court]: It says the application for a protective
order is brought by Janell Fontenot,
applicant, who is the resident of Harris
County. This application for a
protective order is brought for the
protection of [N.F.] who is a resident
of Harris County. Okay. So she is the
applicant, so she is requesting the
protective order, not only for herself,
but also for the child as the applicant.
12
[Derrick’s counsel]: We’d request a trial amendment for the
record, Judge.
[Janell’s counsel]: It’s elsewhere in the pleading that
we’re asking for this.
[Trial Court]: Go ahead, please.
[Janell’s counsel]: Thank you.
We conclude that the issue was not tried by consent because Janell’s pleading
requested a protective order on behalf of N.F. only, and not on behalf of Janell, and
note that Derrick complained of the pleading deficiency to the trial court. See Tex.
R. App. P. 33.1; Ingram, 288 S.W.3d at 893; Guillory, 442 S.W.3d at 690; see also
Moran v. Williamson, 498 S.W.3d 85, 98 (Tex. App.—Houston [1st Dist.] 2016, pet.
denied) (noting that “no special language is required to present an objection to a trial
court”).
Pleadings must give fair notice of the nature and basic issues so the opposing
party can prepare a defense. Bos, 556 S.W.3d at 305–06. Although we liberally
construe the pleadings in the pleader’s favor when no special exception is made, a
liberal construction “does not require a court to read into a petition what is plainly
not there.” Id. at 306. Derrick is entitled to rely on Janell’s pleading, and without
reference to Janell seeking an order as a protected person, Derrick had no reason to
allege the pleading was defective and specially except. Janell argues the same
evidence admitted supporting the entry of a protective order as to N.F. also supports
the entry of an order protecting Janell. See Tex. Fam. Code Ann. §§ 71.004(1),
82.002(a); Bos, 556 S.W.3d at 306–07; Dolgener, 651 S.W.3d at 259–60. However,
the record does not demonstrate that the issue concerning an order protecting Janell
was tried by consent because the record does not indicate that both parties
understood that was an issue in the case. See Bos, 556 S.W.3d at 306–07. “The
doctrine of trial by consent does not apply when the evidence of an unpleaded matter
13
is relevant to the pleaded issues because it would not be calculated to elicit an
objection.” Id. Finally, while it was Janell’s burden to request a trial amendment and
instead Derrick made the request, Derrick’s request for a trial amendment was in
essence an objection to the unpleaded relief requested. See RE/MAX of Tex., Inc.,
961 S.W.2d at 328 (noting that the doctrine of trial by consent should not be applied
in a “doubtful situation”). Because Janell did not plead for this relief and the issue
was not tried by consent, we conclude that the trial court erred when it entered a
protective order in regard to Janell.
C. ATTORNEY’S FEES & RELIEF IN ORDER
Derrick also argues that the trial court granted Janell unpleaded relief when it:
(1) ordered Derrick to attend counseling and undergo a psychological evaluation,
and (2) granted attorney fees for Andrew Bailey when Janell requested attorney’s
fees be awarded to Yalda Bayley.
To preserve an issue for appellate review, a party must make its complaint
known to the trial court by a timely request or objection that is specific enough for
the trial court to be aware of the complaint and then obtain a ruling from the court.
See Tex. R. App. P. 33.1(a). Here, Derrick did not raise in the trial court his
complaint concerning the award of attorney’s fees to Andrew Baily nor his
complaint regarding the provisions in the trial court’s protective order concerning
counseling and a psychological evaluation. Thus, these arguments were not
preserved for our review. See id.; see, e.g., Ennadi v. Ennadi, No. 01-21-00252-CV,
2023 WL 105109, *7 (Tex. App.—Houston [1st Dist.] Jan. 5, 2023, no pet. h.) (mem.
op.) (collecting cases and concluding that argument was not preserved on appeal
when appellant “did not complain in the trial court that its findings did not conform
with the pleadings, and [appellant] did not ask the trial court to modify its final
protective order on the ground that the relief granted in the protective order had not
14
been pled”).
D. SUMMARY
We sustain Derrick’s first issue in part, concluding that the trial court erred
when it entered a protective order in favor of Janell because Janell did not request
that relief in her live pleading. We overrule the remainder of Derrick’s first issue.
III. SUBJECT-MATTER JURISDICTION
Relying on Family Code § 85.062, Derrick argues in his second issue that the
final protective order is void because the trial court lacked subject-matter
jurisdiction.
A. STANDARD OF REVIEW & APPLICABLE LAW
“[S]ubject-matter jurisdiction is essential to a court’s power to decide a case.”
Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553–54 (Tex. 2000). Consequently,
a court cannot render a binding judgment concerning matters over which it lacks
subject-matter jurisdiction. See In re United Servs. Auto. Ass’n, 307 S.W.3d 299,
309 (Tex. 2010) (orig. proceeding). For these reasons, subject-matter jurisdiction
cannot be waived by the parties. See Texas Ass’n of Bus. v. Texas Air Control Bd.,
852 S.W.2d 440, 443–44 (Tex. 1993). Determining whether a trial court had subject-
matter jurisdiction is a question of law we review de novo. City of Houston v. Rhule,
417 S.W.3d 440, 442 (Tex. 2013) (per curiam).
Family Code § 85.062 provides:
(a) If a suit for dissolution of a marriage or suit affecting the parent-
child relationship is pending, a party to the suit may apply for a
protective order against another party to the suit by filing an
application:
(1) in the court in which the suit is pending; or
(2) in a court in the county in which the applicant resides if the
15
applicant resides outside the jurisdiction of the court in which the
suit is pending.
(b) An applicant subject to this section shall inform the clerk of the
court that renders a protective order that a suit for dissolution of a
marriage or a suit affecting the parent-child relationship is pending in
which the applicant is party.
(c) If a final protective order is rendered by a court other than the court
in which a suit for dissolution of a marriage or a suit affecting the
parent-child relationship is pending, the clerk of the court that rendered
the protective order shall:
(1) inform the clerk of the court in which the suit is pending that
a final protective order has been rendered; and
(2) forward a copy of the final protective order to the court in
which the suit is pending.
(d) A protective order rendered by a court in which an application is
filed under Subsection (a)(2) is subject to transfer under Section 85.064.
Tex. Fam. Code Ann. § 85.062.
B. ANALYSIS
Contrary to Derrick’s argument, we have previously analyzed the statutory
scheme and concluded that the filing requirement in Family Code § 85.062 is not
jurisdictional. Phillips v. Phillips, 651 S.W.3d 112, 117 (Tex. App.—Houston [14th
Dist.] 2021, no pet.). Additionally, Derrick’s argument that Janell filed her
application in the wrong court is not a matter of fundamental error. See id. Instead,
Derrick’s argument is more properly characterized as an issue of dominant
jurisdiction6 or venue, which Derrick does not raise on appeal. See Tex. R. App. P.
6
Despite its name, the doctrine of dominant jurisdiction is not jurisdictional. Phillips v.
Phillips, 651 S.W.3d 112, 119 (Tex. App.—Houston [14th Dist.] 2021, no pet.). Dominant
jurisdiction applies when venue is proper in two or more Texas counties or courts. Gonzalez v.
Reliant Energy, Inc., 159 S.W.3d 615, 622 (Tex. 2005); see also In re Puig, 351 S.W.3d 301, 305
(Tex. 2011) (orig. proceeding) (when jurisdiction of two courts is concurrent, issue is one of
dominant jurisdiction); Perry v. Del Rio, 66 S.W.3d 239, 252 (Tex. 2001) (applying ripeness
doctrine to resolve issue of four competing venues). Dominant jurisdiction recognizes “the
plaintiff’s privilege to choose the forum” and accepts that choice as correct, provided “the forum
16
33.1; Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 248 (Tex. 1988) (noting that
court in which suit is first filed acquires dominant jurisdiction), disagreed with on
other grounds by In re J.B. Hunt Transport, Inc., 492 S.W.3d 287 (Tex. 2016) (orig.
proceeding); Gordon v. Jones, 196 S.W.3d 376, 382–83 (Tex. App.—Houston [1st
Dist.] 2006, no pet.) (noting that doctrine of dominant jurisdiction pertains to venue,
not subject-matter jurisdiction); see, e.g., Phillips, 651 S.W.3d at 118–19.
Additionally, Derrick never timely challenged venue or dominant jurisdiction in the
trial court. See Hiles v. Arnie & Co., P.C., 402 S.W.3d 820, 826 (Tex. App.—
Houston [14th Dist.] 2013, pet. denied) (noting that dominant jurisdiction may be
waived if not timely asserted); Tex. R. Civ. P. 86 (“An objection to improper venue
is waived if not made by written motion filed prior to or concurrently with any other
plea, pleading or motion”).7
We overrule Derrick’s second issue.
IV. DUE PROCESS
In his third issue, Derrick argues the trial court violated his due process rights
is a proper one.” Gonzalez, 159 S.W.3d at 622. Thus, “the court in which suit is first filed generally
acquires dominant jurisdiction to the exclusion of other courts if venue is proper in the county in
which suit was first filed.” Id. (citing Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 248 (Tex.
1988)).
7
If a protective order was rendered while a suit for dissolution of marriage is pending as
provided by § 85.062, then the court that rendered the order may, on the motion of a party or on
the court’s own motion, transfer the protective order to the court having jurisdiction of the suit if
the court makes the finding prescribed by § 85.064(c). Dolgener, 651 S.W.3d at 268 (citing Tex.
Fam. Code Ann. § 85.064(a)). A court may transfer a protective order under § 85.064(a) if the
court finds that the transfer is: (1) in the interest of justice, or (2) for the safety and convenience
of a party or witness. Id. (citing Tex. Fam. Code Ann. § 85.064(c)). The provision is not mandatory.
Id.; see Tex. Fam. Code Ann. § 85.064(a). “A protective order that is transferred is subject to
modification by the court that receives the order to the same extent modification is permitted under
Chapter 87 [of the Family Code] by a court that rendered the order.” Tex. Fam. Code Ann.
§ 85.065(c).
17
by terminating his parental rights to N.F.,8 not following the Texas Rules of
Evidence, limiting each side’s presentation of evidence to one hour and fifteen
minutes, and not allowing testimony from two of Derrick’s witnesses.
A. APPLICABLE LAW & STANDARD OF REVIEW
Article I, section 19, of the Texas Constitution provides that “[n]o citizen of
this state shall be deprived of life, liberty, property, privileges or immunities, or in
any manner disfranchised, except by the due course of the law of the land.” Tex.
Const. art. I, § 19. Due process affords litigants the right to be heard. Joseph v. Jack,
624 S.W.3d 1, 11–12 (Tex. App.—Houston [1st Dist.] 2021, no pet.). The
opportunity to be heard must amount to more than mere cross-examination of the
adverse party’s witnesses. Brown v. Brown, No. 01-20-00365-CV, 2021 WL
3204751, at *3 (Tex. App.—Houston [1st Dist.] July 29, 2021, pet. denied) (mem.
op.). “[F]undamental fairness dictates that a party not be arbitrarily deprived of the
right to offer evidence.” Id.
1. Length of Trial
The trial court has great discretion in the conduct of the trial. Dow Chem. Co.
v. Francis, 46 S.W.3d 237, 240 (Tex. 2001). A trial court’s “inherent power” and
the applicable rules of procedure and evidence accord judges broad, but not
unfettered, discretion in handling trials. Metzger v. Sebek, 892 S.W.2d 20, 38 (Tex.
App.—Houston [14th Dist.] 1997, writ denied). A trial court may properly intervene
to maintain control in the courtroom, to expedite the trial, and to prevent what it
considers to be a waste of time. Francis, 46 S.W.3d at 241; Hoggett v. Brown, 971
8
Derrick argues on appeal that due process rights were implicated because, in essence, the
trial court terminated his parental rights. Derrick does not argue that it was a due-process violation
to terminate his parental rights, nor did he raise this argument in the trial court. See Tex. R. App.
P. 33.1(a).
18
S.W.2d 472, 495 (Tex. App.—Houston [14th Dist.] 1997, no pet.); see also Landis
v. N. Am. Co., 299 U.S. 248, 254 (1936) (noting that trial court has inherent power
to control disposition of cases “with economy of time and effort for itself, for
counsel, and for litigants”).
We review the trial court’s imposition of limits on the parties’ presentation of
evidence for an abuse of discretion. See Francis, 46 S.W.3d at 240–41; State v.
Reina, 218 S.W.3d 247, 250 (Tex. App.—Houston [14th Dist.] 2007, no pet.); see
also Tex. R Evid. 611(a) (“The court should exercise reasonable control over the
mode and order of examining witnesses and presenting evidence so as to: (1) make
those procedures effective for determining the truth; (2) avoid wasting time; and (3)
protect witnesses from harassment or undue embarrassment.”). A trial court does not
abuse its discretion unless it acts in an arbitrary and unreasonable manner. Reina,
218 S.W.3d at 250. We review de novo a claim that a party was deprived of a
constitutional right because it presents an issue of law. Joseph, 624 S.W.3d at 11.
Here, Derrick did not object to the imposition of the time limit based on a due-
process violation. See Tex. R. App. 33.1(a). Instead, Derrick stated “[i]f I think I
need more time, I’ll make the objection, Judge, is all I’m saying.” Thus, this
argument was not preserved for our review. See id.; see, e.g., In re L.M.I., 119
S.W.3d 707, 710–11 (Tex. 2003).
2. Rules of Evidence
Derrick argues his due process rights were violated because the trial court:
overruled his hearsay objections to the introduction of text messages between Janell
and Derrick; excluded evidence of a settlement agreement between Janell and
Derrick;9 and excluded testimony of Derrick’s peaceful character. However, Derrick
9
In the divorce proceedings in the 246th District Court, Janell and Derrick entered a
mediated settlement agreement regarding the temporary orders to be entered by the 246th court.
19
did not object to these rulings on due-process grounds. See Tex. R. App. 33.1(a);
Accordingly, these arguments have not been preserved for our review. See id.; In re
L.M.I., 119 S.W.3d at 710–11.
3. Access to the Record
In Derrick’s appellate brief, he notes that he raised a due-process objection to
the trial court’s refusal to allow him to review Janell’s application for a protective
order and the filings in the clerk’s record. However, other than noting this in his
brief, Derrick provides no substantive discussion or citation to authority explaining
why this decision by the trial court violated his due process rights. See Tex. R. App.
P. 38.1(i).
In his brief, Derrick argues that he “had notice of the hearing date and had
been served with the First and Second Amended petitions,” with the second amended
petition being Janell’s live pleading. Derrick argues that “he did not have notice
concerning the circumstances around the original petition, which mislead the trial
district clerk into filing the case in the wrong court” because the original protective
order claimed that N.F. was not under the continuing jurisdiction of any court.
However, as previously concluded, the trial court had jurisdiction over Janell’s
application for a protective order, including an application seeking to protect N.F.
See Pruneda v. Granados, No. 01-20-00043-CV, 2021 WL 2231267, at *11 (Tex.
App.—Houston [1st Dist.] June 3, 2021, no pet.) (mem. op.) (op. on reh’g) (“That a
court of continuing, exclusive jurisdiction exists under Texas Family Code Section
155.001(a) does not deprive another court, of competent jurisdiction, of jurisdiction
over a related protective order.”). Finally, Derrick does not advance any other
The 246th court then entered temporary orders according to the parties’ agreement. See Tex. Fam.
Code Ann. § 153.0071(a), (e); see also In re Lee, 411 S.W.3d 445, 451–55 (Tex. 2013) (orig.
proceeding).
20
argument explaining how his inability to access Janell’s original petition caused him
harm. See Tex. R. App. P. 44.1(a).
We reject Derrick’s argument that his due-process rights were violated
because the trial court did not allow him access to the contents of the clerk’s record,
including Janell’s original application for a protective order.
4. Exclusion of Testimony
Here, the trial court did not permit Smith to testify because the court found
that it was highly likely that the Rule had been violated.
In Texas, sequestration in civil litigation is governed by Texas Rule of
Evidence 614 and Texas Rule of Civil Procedure 267. Drilex Sys., Inc. v. Flores, 1
S.W.3d 112, 116 (Tex. 1999). These rules provide that, at the request of any party,
the witnesses on both sides shall be removed from the courtroom to some place
where they cannot hear the testimony delivered by any other witness in the cause.
Tex. R. Civ. P. 267(a); Tex. R. Evid. 614. Once the Rule is invoked, all nonexempt
witnesses must be placed under the Rule and excluded from the courtroom. Drilex
Sys., 1 S.W.3d at 117. A violation of the Rule occurs when a nonexempt prospective
witness remains in the courtroom during the testimony of another witness, or when
a nonexempt prospective witness learns about another’s trial testimony through
discussions with persons other than the attorneys in the case or by reading reports or
comments about the testimony. Id. When the Rule is violated, the trial court may,
taking into consideration all of the circumstances, allow the testimony of the
potential witness, exclude the testimony, or hold the violator in contempt. Id.
Derrick sought to elicit testimony from Smith showing that Janell was the
aggressor in the August 2020 incident and that Janell was untruthful about her
injuries that day. Assuming, without deciding, that the trial court erred when it
21
excluded the testimony of Smith, we conclude that any such alleged error was
harmless because there was undisputed evidence at trial that Derrick physically
assaulted Janell in other instances apart from the August 2020 incident. See Tex. R.
App. P. 44.1(a). Additionally, Swanson testified that he witnessed Janell striking
Derrick, as opposed to Janell’s allegations that Derrick was striking her. Because the
testimony of Smith would have been duplicative of Swanson’s testimony regarding
the August 2020 incident, the evidence sought to be introduced through Smith would
have been duplicative; thus, any error in excluding Smith’s testimony is harmless.
See id.
Derrick also argues on appeal that the trial court violated his due-process
rights because it did not allow Derrick’s father to testify. However, Derrick did not
assert a due-process objection when the trial court excluded his father’s testimony.
Accordingly, this argument has not been preserved for our review. See Tex. R. App.
P. 33.1(a); In re L.M.I., 119 S.W.3d at 710–11.
We overrule Derrick’s third issue.
V. EVIDENTIARY SUFFICIENCY
In his fourth issue, Derrick argues the evidence was legally and factually
insufficient to support the protective order in favor of N.F. In his fourth issue,
Derrick argues the evidence was legally and factually insufficient to support the trial
court’s finding of future violence. In his fifth issue, Derrick argues the evidence was
legally and factually insufficient to support the protective order for a period longer
than two years.
A. APPLICABLE LAW
“A court shall render a protective order as provided by [§] 85.001(b) if the
court finds that family violence has occurred and is likely to occur in the future.”
22
Tex. Fam. Code Ann. § 81.001; see id. § 85.001(a) (“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.”). The Family
Code further provides that, in instances of family violence by a member of a family
or household against another member of the family or household, an adult member
of the family or household may file an application for a protective order to protect
the applicant or any other member of the applicant’s family or household. Dolgener,
651 S.W.3d at 259 (citing Tex. Fam. Code Ann. §§ 71.004(1), 82.002(a)).
The general rule is that the duration of a Family Code protective order may
not exceed two years. Tex. Fam. Code Ann. § 85.025(a). However,
(a-1) the court may render a protective order sufficient to protect the
applicant and member’s of the applicant’s family or household
that is effective for a period that exceeds two years if the court
finds that the person who is subject to the protective order[10]:
(1) committed an act constituting a felony offense involving family violence
against the applicant or a member of the applicant’s family or
household . . . .
Tex. Fam. Code Ann. § 85.025(a-1); Straughan v. Girsch, No. 14-20-00763-CV,
2022 WL 2977049, at *3 (Tex. App.—Houston [14th Dist.] July 28, 2022, no pet.
h.) (mem. op.). “Family violence” means:
(1) an act by a member of a family or household against another
member of the family or household 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, but does not include defensive
measures to protect oneself;
10
We note that Derrick does not argue that the evidence of violence before the trial court
was insufficient to support the length of the protective order; rather, Derrick argues the evidence
was simply insufficient to support the findings needed for the entry of a protective order for longer
than two years—i.e., that there was family violence, including a felony offense involving family
violence, and a future risk of family violence.
23
(2) abuse, as that term is defined by [§] 261.001(1)(C), (E), (G), (H),
(I), (J), (K), and (M), by a member of a family or household toward a
child of the family or household; or
(3) dating violence, as that term is defined by [§] 71.0021.
Tex. Fam. Code Ann. § 71.004; see Dolgener v. Dolgener, 651 S.W.3d 242, 255
(Tex. App.—Houston [14th Dist.] 2021, no pet.); Boyd v. Palmore, 425 S.W.3d 425,
430 (Tex. App.—Houston [1st Dist.] 2011, no pet.); see also id. §§ 71.003 (defining
“family”), 71.005 (defining “household”).
Intentionally or knowingly causing physical contact with another when the
person knows or should reasonably believe that the other will regard the contact as
offensive or provocative meets the statutory definition. See Tex. Fam. Code Ann.
§ 71.004(1); Tex. Pen. Code Ann. § 22.01(a)(3) (defining “assault”). Given the
remedial nature of the Family Code’s protective order provisions, courts broadly
construe its provisions to effectuate its humanitarian and preventative purposes.
Burt, 528 S.W.3d at 553; Boyd, 425 S.W.3d at 430; see Rodriguez v. Doe, 614
S.W.3d 380, 385 (Tex. App.—Houston [14th Dist.] 2020, no pet.).
B. STANDARD OF REVIEW
We review the trial court’s findings in a protective order proceeding that
family violence has occurred and is likely to occur in the future for legal and factual
sufficiency. Dolgener, 651 S.W.3d at 256.
1. Legal Sufficiency
Evidence is legally sufficient if, viewing all the evidence in the light most
favorable to the fact-finding and considering undisputed contrary evidence, a
reasonable factfinder could form a firm belief or conviction that the finding was true.
In re A.C., 560 S.W.3d 624, 631 (Tex. 2018). In conducting a legal-sufficiency
review, the reviewing court cannot ignore undisputed evidence contrary to the
24
finding, but it must otherwise assume the factfinder resolved disputed facts in favor
of the finding. Id. at 630–31.
2. Factual Sufficiency
In a factual sufficiency review, we examine the entire record and consider and
weigh all the evidence, both in support of, and contrary to, the challenged finding.
See id. Having considered and weighed all the evidence, we should set aside the
judgment only if the evidence is so weak, or the finding so against the great weight
and preponderance of the evidence, that it is clearly wrong and unjust. Boyd, 425
S.W.3d at 429 (citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986)); see In re
A.C., 560 S.W.3d at 631.
C. ANALYSIS
1. Finding of Family Violence
In his fourth issue, Derrick argues the evidence was insufficient to support the
protective order in favor of N.F. because Derrick did not commit family violence
towards N.F. To enter a protective order in favor of N.F., the trial court had to find
that Derrick committed family violence against Janell or N.F., in addition to finding
that family violence was likely to reoccur in the future. See Tex. Fam. Code Ann.
§ 81.001; see also Dolgener, 651 S.W.3d at 259–60 (“This is because an applicant’s
family members may be at risk of suffering family violence as a result of their
relationship to the applicant, even though they have not yet suffered harm.”).
Here, there was evidence that Derrick physically assaulted Janell, Derrick’s
family member, by strangling her on two separate occasions. See Tex. Fam. Code
Ann. § 71.003. This is legally sufficient evidence to support a finding that family
violence by Derrick occurred. See In re A.C., 560 S.W.3d at 630–31. Additionally,
the trial court heard testimony that Derrick assaulted Janell by physically hitting her
25
on August of 2020, by slapping her on multiple occasions, and that Derrick sexually
assaulted Janell at the Thanksgiving party in 2018.
As to factual sufficiency, the evidence in the record contrary to the finding of
family violence is that: Janell told Deputy Sandoval on December 13, 2020, that
there was no history of violence; Deputy Torres did not see bruises on Janell three-
and-a-half weeks after December 14; Derrick’s military friends did not witness
anything involving a sexual assault at the 2018 Thanksgiving party; and Janell was
the aggressor in the August 2020 event. Having reviewed the record as a whole, we
cannot conclude that a finding of family violence by Derrick is so weak or so against
the great weight and preponderance of the evidence that it is clearly wrong and
unjust. See Boyd, 425 S.W.3d at 429. Therefore, we conclude the evidence is not
factually insufficient to support a finding that Derrick committed family violence
against Janell.11 See id. at 433. As such, we reject Derrick’s argument that there is
insufficient evidence supporting the protective order for N.F. See Tex. Fam. Code
Ann. §§ 71.004(1), 81.001, 82.002(a), 85.001(a); Dolgener, 651 S.W.3d at 259.
We overrule Derrick’s fourth issue.
2. Finding of Future Violence
In his fifth issue, Derrick argues the evidence was legally and factually
insufficient to support the trial court’s finding of future violence because “[t]he only
11
To enter a protective order, the trial court had to find that family violence occurred and
is likely to occur in the future. Tex. Fam. Code Ann. § 81.001; see id. 85.001(a). The Family Code
does not limit the protected persons listed under a protective order solely to individuals who
directly suffered family violence. Dolgener, 651 S.W.3d at 259–60; see Tex. Fam. Code Ann.
§ 85.001. Because we conclude that there was sufficient evidence of family violence against Janell,
we need not address Derrick’s argument that there was insufficient evidence he committed family
violence against N.F. See Tex. R. App. P. 47.1 (“The court of appeals must hand down a written
opinion that is as brief as practicable but that addresses every issue raised and necessary to final
disposition of the appeal.”).
26
direct evidence suggesting future violence came from Janell’s opinion . . . .”12
“The statutory language of [§ 85.001] does not require that a likelihood
finding [of future family violence] be based on more than one act of family
violence.” Boyd, 425 S.W.3d at 432; Dolgener, 651 S.W.3d at 260; see Tex. Fam.
Code Ann. § 85.001. On the contrary, courts have recognized that 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. Dolgener, 651
S.W.3d at 260; Boyd, 425 S.W.3d at 432; see Teel v. Shifflett, 309 S.W.3d 597, 604
(Tex. App.—Houston [14th Dist.] 2010, pet. denied) (“The trial court reasonably
could have concluded that future violence is likely to occur based on the testimony
showing a pattern of violent behavior.”); see also In re Epperson, 213 S.W.3d 541,
543–44 & n.3 (Tex. App.—Texarkana 2007, no pet.) (concluding that past and
continuing pattern of behavior showed applicant was reasonable in fearing
respondent would commit acts of “family violence” in the future). While a pattern
of family violence is sufficient to support a likelihood finding, a pattern is not a
necessary prerequisite to such a finding. Boyd, 425 S.W.3d at 432.
Here, there was evidence of a pattern of family violence by Derrick against
Janell from the time Janell was pregnant with N.F. The record indicates multiple
instances testified to by Janell where Derrick committed family violence against her
and that instances of abuse occurred about once a month. In the text messages
between Derrick and Janell, admitted into evidence, Janell and Derrick discuss
Derrick’s anger issues, as Janell asks him to work on his anger. Janell states, “The
rage has always been there[,] the meanness has always been there,” with Janell
12
Derrick does not argue that the evidence of violence before the trial court was insufficient
to support the length of the protective order, rather than any finding needed to support the entry of
a protective order. See Tex. R. App. P. 38.1(f), (h), (i).
27
describing their relationship as “toxic.” The text messages support an inference that
Derrick’s anger issues remain unresolved. Finally, Janell testified that Derrick would
“admit to what he’s done and then we’ll go back to it again.” Based on this evidence,
the trial court could reasonably have concluded that family violence was likely to
occur in the future. See Dolgener, 651 S.W.3d at 261; Teel, 309 S.W.3d at 604; In
re Epperson, 213 S.W.3d at 544.
Derrick points to evidence that he had not made any attempts to contact Janell
since January of 2021, approximately six months prior to trial. However, “[e]vidence
of improved conduct, especially over a short duration, does not conclusively negate
the probative value of a long history of violent behavior and inappropriate choices.”
In re M.M.M., No. 01-21-00269-CV, 2021 WL 5365102, at *15 (Tex. App.—
Houston [1st Dist.] Nov. 18, 2021, pet. denied) (mem. op.)
Derrick also argues that there was limited credible evidence that violence
occurred on December 14, 2020, because “Janell told police on December 13, 2020,
that there had never been family violence in the past” and because “[p]ictures taken
after the December 14th alleged assault don’t mesh with Janell’s testimony.”13
However, Janell testified regarding the family violence that allegedly occurred on
December 14, 2020, and the text messages between Derrick and Janell support this
allegation. Additionally, Officer Torres testified she believed Janell’s allegations
after reviewing text messages between Janell and Derrick. Finally, in the text
messages between Janell and Derrick admitted into evidence from December 16,
2021, Janell mentions Derrick’s violence towards her. Derrick states in one of the
text messages “I promise no more violence yyyou [sic] right I’ll go work on that
starting today[.]” In a text from December 17, 2021, Janell tells Derrick that she
13
No pictures taken after the December 14th assault were introduced into the record or
discussed at trial.
28
“was at the doctor checking out my neck, throat after you choked me out yesterday.”
When there is competing evidence, the trial court as factfinder is free to believe one
witness and disregard another witness’s conflicting testimony. Dolgener, 651
S.W.3d at 257; see Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761
(Tex. 2003). We conclude the evidence is legally sufficient and not factually
insufficient to support the trial court’s finding of a danger of future violence. See In
re A.C., 560 S.W.3d at 630–31.
We overrule Derrick’s fifth issue.
3. Finding of Felony Offense Involving Family Violence
In his sixth issue, Derrick challenges the trial court’s finding that he
committed a felony offense involving family violence against Janell, which is
required to support a protective order for a period longer than two years. See Tex.
Fam. Code Ann. § 85.025(a-1).
Here, Janell testified her breathing was restricted when Derrick choked her on
December 14 for “about a half a second or so.” Assault against a family member by
impeding breath is a felony offense. Tex. Penal Code Ann. § 22.01(a), (b)(2)(B).
Texas Penal Code § 22.01 provides:
(a) A person commits an offense if the person:
(1) intentionally, knowingly, or recklessly causes bodily injury
to another, including the person’s spouse;
...
(b) An offense under Subsection (a)(1) is a Class A misdemeanor,
except that the offense is a felony of the third degree if the offense is
committed against:
...
(2) a person whose relationship to or association with the
defendant is described by Section 71.0021(b), 71.003, or 71.005,
Family Code, if:
29
...
(B) the offense is committed by intentionally, knowingly, or
recklessly impeding the normal breathing or circulation of the blood of
the person by applying pressure to the person’s throat or neck or by
blocking the person’s nose or mouth . . . .
Tex. Penal Code Ann. § 22.01(a), (b)(2)(B); see also Tex. Fam. Code Ann. § 71.003(defining “Family”).
Without citation to supporting authority, see Tex. R. App. P. 38.1(i), Derrick
argues that “[a] vigorous shaking that ‘restricts’ breathing for ‘maybe half a second’
is simply not sufficient evidence to prove that Derrick impeded the normal breathing
of [Janell] by applying pressure to her neck.” However, the Texas Court of Criminal
Appeals has interpreted “impeding” under Penal Code § 22.01(b)(2)(B) “to include
any degree of impediment to one’s normal breathing,” “because ‘the plain meaning
of the statutory language indicates that any impediment to normal breathing’ is
sufficient . . . .” Philmon v. State, 609 S.W.3d 537, 537 (Tex. Crim. App. 2020)
(quoting Marshall v. State, 479 S.W.3d 840, 844–45 (Tex. Crim. App. 2016)).
Accordingly, we reject Derrick’s argument that the length of time he impeded
Janell’s breath was insufficient, and we conclude that the evidence is legally and
factually sufficient to support the trial court’s finding that Derrick committed a
felony offense involving family violence. Accordingly, the evidence is sufficient to
support the trial court’s entry of a protective order for a period of longer than two
years. See Tex. Penal Code Ann. § 22.01(a), (b)(2)(B).14
14
We note that we review the prohibitions and awards entered in a protective order for an
abuse of discretion. Dolgener, 651 S.W.3d at 262; see Tex. Fam. Code Ann. § 85.025(a-1)
(provided that the court “may” enter a protective order exceeding two years if the court finds that
the person subject to the order committed a felony offense involving family violence against the
applicant or member of the household); In re Doe, 19 S.W.3d 249, 253 (Tex. 2000) (“The abuse
of discretion standard applies when a trial court has discretion either to grant or deny relief based
on its factual determinations.”). When challenging such a finding left to the trial court’s discretion,
legal and factual sufficiency of the evidence are not independent grounds for asserting error but
30
We overrule Derrick’s sixth issue.
VI. CONCLUSION
We reverse in part the trial court’s order to the extent it lists Janell as a
“protected person” under the order. We affirm the remainder of the trial court’s order
as challenged on appeal.
/s/ Margaret “Meg” Poissant
Panel consists of Justices Spain, Poissant, and Wilson.
are instead relevant factors in assessing whether the trial court abused its discretion. Schafman v.
Schafman, No. 01-20-00231-CV, 2022 WL 962466, at *4 (Tex. App.—Houston [1st Dist.] Mar.
21, 2022, no pet.) (mem. op.) (citing Syed v. Masihuddin, 521 S.W.3d 840, 847 (Tex. App.—
Houston [1st Dist.] 2017, no pet.)). In determining whether an abuse of discretion exists because
the evidence is legally or factually insufficient to support the trial court’s decision, we consider
whether the trial court had sufficient information upon which to exercise its discretion and whether
it erred in its application of that discretion. Id. Answering the first question involves the traditional
sufficiency of evidence review, and answering the second question involves determining whether
the trial court made a reasonable decision. Id. Derrick does not argue on appeal that the trial court
abused its discretion by making an unreasonable decision when it entered a protective order as to
of N.F. until N.F. reaches the age of eighteen. See Tex. R. App. P. 38.1(f), (h), (i); see also Walling
v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993) (per curiam) (“We have held repeatedly that the courts
of appeals may not reverse the judgment of a trial court for a reason not raised in a point of error.”).
31