Andy Scott v. State ( 2005 )

                                                                                    NO. 12-04-00041-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

ANDY SCOTT,                                                   §                 APPEAL FROM THE 321ST

APPELLANT

V.                                                                         §                 JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS FOR THE

PROTECTION OF SHIRLEY TABLER,

APPELLEE                                                        §                 SMITH COUNTY, TEXAS

MEMORANDUM OPINION

            Appellant Andy Scott appeals a protective order. Scott presents three issues on appeal. We affirm.

Background

            On October 15, 2003, the State filed an application for a protective order on behalf of Shirley Tabler. Scott was the respondent. The State, on behalf of Tabler, alleged that Scott committed acts of family violence and that family violence was likely to occur in the future. In an affidavit attached to the application, Judy Weaver, Tabler’s sister, alleged that Scott was responsible for injuries Tabler suffered on or about September 30, 2003, including head trauma, two compressed fractures of the head, punctured lungs, multiple broken ribs, crushed pelvis, broken ankles, loss of sense of smell, and intermittent consciousness. On November 21, the trial court held a hearing on the protective order. At the time of the hearing, Tabler was hospitalized and had undergone over seventeen surgical procedures.

            At the conclusion of the hearing, the trial court granted the State’s application for protective order. In its order signed November 25, 2003, the trial court found that Scott had committed family violence and that family violence is likely to occur in the future. The trial court prohibited Scott from communicating directly with Tabler in any manner, communicating with Tabler in any manner through any person, and from going within 500 yards of Tabler’s residence located at 914 West Fifth Street, Tyler, Smith County, Texas or any other place where Tabler may reside during the time the protective order is in effect. This appeal followed.

Protective Order

            In his first issue, Scott contends that the trial court abused its discretion by entering a protective order prohibiting him from communicating directly with Tabler in any manner. In his second issue, Scott argues that the trial court abused its discretion by entering a protective order prohibiting him from communicating with Tabler in any manner through any person. In his third issue, Scott contends that the trial court abused its discretion by entering a protective order prohibiting him from going within 500 yards of Tabler’s residence located at 914 West Fifth Street, Tyler, Smith County, Texas.

Applicable Law

            The test for abuse of discretion is whether the trial court acted without reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). In other words, the reviewing court must decide whether the trial court’s act was arbitrary or unreasonable. Id. at 242. However, the mere fact that a trial judge may decide a matter within his discretionary authority in a different manner than an appellate judge in a similar circumstance does not demonstrate than an abuse of discretion has occurred. Id. If an appellant contends that there has been an abuse of discretion by the trial court, the appellant must demonstrate how the trial court has acted unreasonably or arbitrarily, by misapplying the law or by acting without reference to guiding rules and principles. Matter of A.J.G., 131 S.W.3d 687, 691 (Tex. App.–Corpus Christi 2004, pet. denied). Moreover, a brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record. Tex. R. App. P. 38.1(h).

Analysis

            In his first two issues, Scott’s sole argument is that as a consequence of the protective order’s prohibitions, he cannot contact Tabler and that she must wonder why he has not contacted her. As a result, he and, most likely, Tabler have suffered “immense psychological damage.” Scott’s first two arguments do not contain any citations to the record other than to the protective order itself, nor do they contain a discussion of how the trial court’s prohibitions were unreasonable or arbitrary. Because Scott failed to demonstrate the trial court’s abuse of discretion and failed to comply with the Texas Rules of Appellate Procedure, we conclude that Scott has waived his challenge to these provisions of the trial court’s protective order. See Tex. R. App. P. 38.1(h); Matter of A.J.G., 131 S.W.3d at 691. Accordingly, we overrule Scott’s first and second issues.

            In his third argument, Scott contends that the trial court abused its discretion by prohibiting him from going within 500 yards of Tabler’s residence in Tyler, Texas because, at the time of the hearing, it was not Tabler’s residence nor did she own or lease the property. Scott argues that there is no evidence that she would ever reside at the location or that she would recover sufficiently from her injuries to live independently. Moreover, Scott argues that he is unable to protect the property, which he owns, because of the protective order.

            Scott points out that Tabler neither owns or leases the residence. Relying on section 85.021 of the Texas Family Code, he concludes that the trial court was without authority to give her exclusive possession of the residence. See Tex. Fam. Code Ann. § 85.021 (2)(A)-(C) (Vernon 2002) (permitting granting exclusive possession of residence to party who is an owner or lessee). However, section 85.021 pertains to a protective order “applying to any party.” See Tex. Fam. Code Ann. § 85.021 (Vernon 2002). Section 85.022 relates to a protective order against a person who has committed family violence. See Tex. Fam. Code Ann. § 85.022 (Vernon 2002).

             In this case, the trial court found that Scott had committed family violence and that family violence was likely to occur in the future. As such, section 85.022 applies. Section 85.022 authorizes the trial court to prohibit the person found to have committed family violence from going to or near the residence of a person protected by an order. Tex. Fam. Code Ann. § 85.022(b)(3) (Vernon 2002).

            In the hearing, both Scott and Weaver testified that Tabler lived in a house provided or owned by Scott since 1987. According to Scott, he supported Tabler, and Weaver admitted that Tabler held only one or two jobs briefly. Although Tabler was in the hospital at the time of the hearing, the evidence tended to show that her residence was the house owned or provided by Scott in Tyler. Because the trial court found that Scott had committed family violence, the trial court did not abuse its discretion by prohibiting him from going within 500 yards of Tabler’s residence. See Tex. Fam. Code Ann. § 85.022(b)(3). Accordingly, we overrule Scott’s third issue.

Disposition

            The judgment of the trial court is affirmed.

                                                                                                    SAM GRIFFITH

                                                                                                               Justice

Opinion delivered May 31, 2005.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

(PUBLISH)