in the Interest J. A. T., a Child ( 2005 )

                             NUMBER 13-04-00477-CV

                         COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI B EDINBURG

                       IN THE INTEREST OF J.A.T., A MINOR CHILD.

    On appeal from the 214th District Court of Nueces County, Texas.

                       MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

                         Memorandum Opinion by Justice Hinojosa

This is an appeal from the trial court=s order granting a protective order against appellant, Anthony James Trejo.  In two issues, appellant contends (1) the evidence is legally insufficient to support the trial court=s order granting the protective order against him, and (2) the trial court erred in modifying his joint managing conservatorship rights.  We reverse and render.

As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of our decision and the basic reasons for it.  See Tex. R. App. P. 47.4.

In his first issue, appellant contends the evidence is legally insufficient to support the trial court=s order granting the protective order against him.  When we review a "no‑evidence" or "legal sufficiency of the evidence" issue, we must view all the evidence in a light that tends to support the finding of the disputed fact and disregard all evidence and inferences to the contrary.  Bradford v. Vento, 48 S.W.3d 749, 754 (Tex. 2001); Hines v. Comm'n for Lawyer Discipline, 28 S.W.3d 697, 701 (Tex. App.BCorpus Christi 2000, no pet.).  A no-evidence issue will be sustained when the record discloses that (1) there is a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence conclusively establishes the opposite of the vital fact.  Merrell Dow Pharms. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).  If there is more than a scintilla of evidence to support the finding, the no evidence challenge fails.  Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex. 1987).  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 not more than a scintilla and, in legal effect, is no evidence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983).  More than a scintilla of evidence exists where the evidence supporting the finding, as a whole, rises to a level that would enable reasonable and fair‑minded people to differ in their conclusions.  Havner, 953 S.W.2d at 711.

A court shall render a protective order if the court finds that family violence (1) has occurred and (2) is likely to occur in the future.  Tex. Fam. Code Ann. ' 81.001 (Vernon 2002).  "At the close of a hearing on an application for a protective order, the court shall find whether:  (1) family violence occurred; and (2) family violence is likely to occur in the future."  Tex. Fam. Code Ann. ' 85.001(a) (Vernon 2002).

The evidence in the record shows that on June 11, 2004, during the exchange of the minor child, appellant pulled appellee, Jessica Alise Pena, toward him when she had the child in her arms, which resulted in the child being pulled between the two parties.  Assuming without deciding that this action constituted Afamily violence,@ the record contains no evidence that family violence "is likely to occur in the future."  See Tex. Fam. Code Ann. ' 85.001(a)(2) (Vernon 2002).  Because appellee failed to establish the second element required by section 85.001(a) of the family code, we hold the evidence is legally insufficient to support the trial court's protective order of July 9, 2004.  We sustain appellant's first issue.

We REVERSE the trial court=s protective order of July 9, 2004.  We RENDER judgment that (1) appellee=s request for a protective order is denied and (2) the trial court=s protective order of July 9, 2004 is set aside in its entirety.

In his second issue, appellant contends the trial court abused its discretion in modifying the joint managing conservatorship rights of appellant in the protective order of July 9, 2004.  The trial court modified appellant=s joint managing conservatorship rights Aduring the pendency of [the protective] order.@ Because the trial court=s protective order of July 9, 2004 has been set aside in its entirety, there is no modification.  Thus, it is unnecessary to address appellant=s second issue.  See Tex. R. App. P. 47.1.

FEDERICO G. HINOJOSA

Justice

Memorandum Opinion delivered and filed this

the 18th day of August, 2005.