in the Interest of A.W.R., a Child ( 2010 )

IN THE
TENTH COURT OF APPEALS
No. 10-09-00237-CV
IN THE INTEREST OF A.W.R., A CHILD
From the 378th District Court
Ellis County, Texas
Trial Court No. 62,517D
MEMORANDUM OPINION
The trial court granted an application for protective order sought by Marilyn
Rushing against her ex-husband, John Rushing, for alleged abuse of their son, A.W.R.
John challenges: (1) the constitutionality of sections 81.005 and 81.006 of the Family
Code; (2) the denial of his motion to re-open evidence; and (3) the factual sufficiency of
the evidence to support the trial court’s finding of family violence.1 We affirm.
1 John filed a first amended motion and objection to informalities in the record, complaining of a
hearing transcript included in Marilyn’s appendix. Because this transcript is not part of the appellate
record, we cannot consider it. See Mitchell v. Citifinancial Mortg. Co., 192 S.W.3d 882, 883 (Tex. App.—
Dallas 2006, no pet.); see also GMAC v. Fleetwood Enters., No. 10-08-00055-CV, 2009 Tex. App. LEXIS
1913, at *6 n.1 (Tex. App.—Waco Mar. 18, 2009, no pet.) (mem. op.). John’s motion is granted.
CONSTITUTIONAL CHALLENGE
In issue one, John contends that sections 81.005 and 81.006 of the Family Code
violate due process and equal protection rights.
An applicant for a protective order may be represented by either a prosecuting
attorney or a private attorney. See TEX. FAM. CODE ANN. § 81.005(a) (Vernon 2008); see
also TEX. FAM. CODE ANN. § 81.006(1)-(2) (Vernon 2008); Ford v. Harbour, No. 14-07-
00832-CV, 2009 Tex. App. LEXIS 1796, at *17 (Tex. App.—Houston [14th Dist.] Mar. 17,
2009, no pet.) (mem. op.). Marilyn is represented by a private attorney.
John argues that non-movants have greater rights when a prosecutor represents
the applicant. Specifically, per Article 2.01 of the Code of Criminal Procedure, a
prosecutor must disclose exculpatory evidence. See TEX. CODE CRIM. PROC. ANN. art.
2.01 (Vernon 2005). A private attorney has no such duty. Thus, John maintains that
non-movants are treated disparately depending on the type of attorney representing the
applicant. By way of example, he points to the “silver platter doctrine,” which allowed
evidence seized by State officers during an illegal search, in which federal officers did
not participate, to be admitted in a federal criminal trial. See Elkins v. U.S., 364 U.S. 206,
208, 80 S. Ct. 1437, 1439, 4 L. Ed. 2d 1669 (1960) (abolishing “silver platter doctrine”).
Marilyn contends that a protective order is a civil proceeding to which the Code
of Criminal Procedure does not apply. John argues that protective orders have criminal
and quasi-criminal consequences. See TEX. GOV’T CODE ANN. § 411.172(a)(12) (Vernon
Supp. 2009) (Ineligibility to obtain a concealed handgun license or carry a concealed
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handgun); see also TEX. FAM. CODE ANN. § 86.0011 (Vernon 2008) (Requiring entry of the
protective order into the state-wide law enforcement information system).
The Code of Criminal Procedure applies to criminal proceedings. See TEX. CODE
CRIM. PROC. ANN. art. 1.02 (Vernon 2005). Chapter 81 of the Family Code governs
protective orders rendered when family violence has occurred. In re Skero, 253 S.W.3d
884, 886 (Tex. App.—Beaumont 2008, orig. proceeding); see TEX. FAM. CODE ANN. §§
81.001 et. seq. (Vernon 2008). “An application for a protective order is a civil matter”
and is “in the nature of a civil injunction.” Amir-Sharif v. Hawkins, 246 S.W.3d 267, 271
(Tex. App.—Dallas 2007, pet. dism’d) (Declining to apply Article 46B of the Code of
Criminal Procedure, i.e., competency to stand trial, to protective orders); Harris v. State,
164 S.W.3d 775, 780 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d); see Baxter v. Texas
Dep’t of Human Res., 678 S.W.2d 265, 267 (Tex. App.—Austin 1984, no pet.) (Declining to
apply Article 38.23 of the Code of Criminal Procedure, i.e., the exclusionary rule, to
termination proceedings).
Because protective orders are civil proceedings, they are governed by the Family
Code, not the Code of Criminal Procedure. See Amir-Sharif, 246 S.W.3d at 271; see also
Baxter, 678 S.W.2d at 267; Harris, 164 S.W.3d at 781. Thus, we cannot say that a non-
movant is treated disparately when the applicant is represented by a private attorney
versus a prosecuting attorney. We overrule issue one.
FAILURE TO REOPEN EVIDENCE
In issue two, John challenges the denial of his motion to reopen the evidence to
introduce a report by the Grapevine Police Department.
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When it clearly appears to be necessary to the due administration of justice, the
court may permit additional evidence to be offered at any time. TEX. R. CIV. P. 270. In
determining whether to permit additional evidence under Rule 270, a court should
consider: (1) the movant’s diligence in obtaining the additional evidence; (2) the
decisiveness of this evidence; (3) whether the reception of the evidence could cause any
undue delay; and (4) whether the granting of the motion could cause any injustice.
McCuen v. Huey, 255 S.W.3d 716, 738 (Tex. App.—Waco 2008, no pet.) (quoting Saunders
v. Lee, 180 S.W.3d 742, 745 (Tex. App.—Waco 2005, no pet.)).
At the protective order hearing, Dr. Thomas Deacon testified that, in December
2008, he examined A.W.R. for injuries to his eye and mouth. A.W.R. claimed to have
been slapped by John. Deacon diagnosed A.W.R. with a lip hematoma. Clinical social
worker Arlette Werthmann testified that she spoke with John who thought he might
have struck A.W.R. in the eye with his elbow while wrestling with A.W.R.
John later filed a fourth amended motion to reopen, explaining that he received a
report from the Department of Protective and Regulatory Services on May 12, 2009,
which alerted him to a Grapevine Police Department report regarding the 2008 incident.
He received the police report on May 15. In the report, Detective D.W. Easley stated
that Dr. J. Coffman reviewed photographs of A.W.R.’s injuries and opined that they
were “not consistent with a slap,” but the “black eye was more consistent with a punch
or elbow hitting the eye.” Based on this opinion, the Tarrant County District Attorney’s
Office told Easley that a charge of injury to a child would not be accepted.
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John contends that Easley’s report shows that the 2008 incident is not abuse and
is inconsistent with A.W.R.’s allegations. Marilyn contends that the trial court properly
denied the motion because John failed to show either diligence or decisiveness.
John contends that he sent several requests for the report and filed prompt
motions to reopen. However, he cannot show that the evidence was unavailable or
could not have been available at the time of the hearing. See Naguib v. Naguib, 137
S.W.3d 367, 373 (Tex. App.—Dallas 2004, pet. denied); see also In the Interest of A.A.E.,
No. 13-03-00528-CV, 2005 Tex. App. LEXIS 4419, at *6 (Tex. App.—Corpus Christi June
9, 2005, no pet.) (mem. op.). According to Easley’s report, John and his attorney met
with Easley on January 8. Easley spoke with Dr. Coffman on January 22. The hearing
occurred on January 23. John knew about Easley’s investigation. He could have called
Easley to testify at the hearing. Moreover, John filed his second amended motion to
reopen, with attached police records, nearly four months after the hearing. Third and
fourth amended motions followed. A trial court does not abuse its discretion by
refusing to reopen a case after evidence is closed, particularly where the party seeking
to reopen has not shown diligence in attempting to produce the evidence in a timely
fashion. McNamara v. Fulks, 855 S.W.2d 782, 784 (Tex. App.—El Paso 1993, no pet.).
Additionally, the excluded evidence does not address A.W.R.’s lip injury
diagnosed by Deacon. John presented some evidence, through Werthmann, suggesting
that he did not intentionally strike A.W.R. in the eye. This testimony contradicts Dr.
Deacon’s opinion. Thus, the excluded evidence would merely add to the already
conflicting evidence regarding whether John intentionally struck A.W.R. On the other
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hand, the evidence could also support a finding that A.W.R. was intentionally harmed
by a “punch.” The evidence is not decisive. See In re Estate of Huff, 15 S.W.3d 301, 309
(Tex. App.—Texarkana 2000, no pet.) (Additional evidence was not decisive because
“Intervenors had already offered some evidence of their attorney’s fees at trial.”); see
also Naguib, 137 S.W.3d at 373 (“[A]dditional evidence is not determinative, but
cumulative.”); Caro v. Sharp, No. 03-02-00108-CV, 2003 Tex. App. LEXIS 4943, at *20
(Tex. App.—Austin June 12, 2003, pet. denied) (mem. op.) (Appellants failed to
“demonstrate[] how contradicting already contradicted testimony would be decisive.”).
Because John cannot satisfy all four requirements for reopening the evidence, we
cannot say that the trial court abused its discretion by denying John’s motion to reopen.
We overrule issue two.
FACTUAL SUFFICIENCY
In issue three, John challenges the factually sufficiency of the evidence to show
that family violence is likely to occur in the future.
Applicable Law
At the close of a hearing on an application for a protective order, the court shall
find whether: (1) family violence has occurred; and (2) family violence is likely to occur
in the future. TEX. FAM. CODE ANN. § 85.001(a) (Vernon 2008). If the trial court finds
that family violence has occurred and is likely to occur in the future, the trial court shall
render a protective order. See id. at § 85.001(b)(1); see also TEX. FAM. CODE ANN. § 81.001.
“[E]vidence that a parent has engaged in abusive or neglectful conduct in the past
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permits an inference that the parent will continue this behavior in the future.” In the
Interest of T.L.S., 170 S.W.3d 164, 166 (Tex. App.—Waco 2005, no pet.).
Analysis
Dr. Deacon testified that, on December 29, 2008, A.W.R. claimed that John
slapped him. Deacon observed a two-centimeter purple area on the left lower lip. He
saw no dark areas on the eyes. Photographs of A.W.R.’s injuries showed a bruise or
contusion. He diagnosed A.W.R. with a lip hematoma and suggested notifying the
Department. Marilyn filed her application for protective order on January 7, 2009.
Prior Acts of Violence Involving A.W.R.
In July 2002, Dr. Deacon observed linear marks on A.W.R.’s bottom. A.W.R.
claimed to receive spankings from his step-mother and John. In August, Deacon spoke
with the Department. In a letter to the trial court, Patti Stovall with the Department
ruled the incident “unable to determine.” A.W.R. could not recall his last spanking.
John admitted spanking A.W.R, but denied leaving marks. He agreed not to spank
A.W.R. during visits. A.W.R.’s teacher and day care director both stated that his
behavior was no different after visits with John, that he was aggressive, and that he had
behavioral problems. Marilyn claimed that A.W.R. is afraid of John and does not want
to visit him.
John contends that this incident cannot be attributed to him because (1) the
evidence does not show whether A.W.R.’s bruising resulted from spankings given by
him, his wife, or both; and (2) the Department did not find the incident to be significant.
Stovall’s letter, however, contains John’s admission to spanking A.W.R. The record
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does not explain why the Department waited until August to contact Deacon.
Nevertheless, the Department could not conclude that the incident did not occur. See
Comer v. Tex. Dep’t of Protective & Regulatory Servs., No. 03-03-00564-CV, 2004 Tex. App.
LEXIS 10759, at *5 n.6 (Tex. App.—Austin Dec. 2, 2004, pet. denied) (mem. op.) (“The
Department marks cases ‘unable to determine’ when it can neither substantiate nor rule
out an allegation.”); see also 40 TEX. ADMIN. CODE § 700.511(a)(4), (b)(4) (2010).
A second incident occurred in February 2003. According to Stovall, red marks
were seen on A.W.R.’s thighs. A.W.R. claimed that John spanked him. He stated that
John visited him at school the day after the spanking. He was nice to John for fear that
John would spank him. A.W.R. told Stovall that he would be happy not to visit John
because John “lies like the devil,” and because Marilyn does not want him to visit.
A.W.R.’s teacher told Stovall that A.W.R. did not appear to be afraid of John, but had
winked and smiled at John. Marilyn told Stovall that A.W.R. does not want to visit
John because of how he is treated. John told Stovall that, because of prior allegations,
he checks A.W.R. for marks before returning him to Marilyn. John denied spanking
A.W.R. and told Stovall that A.W.R. often plays outdoors during visits.
A third incident occurred in April 2007. According to Deacon, A.W.R. claimed
that his “dad” struck his back and stomach. Deacon observed tenderness on the trunk,
scapula, and left thoracic area. He diagnosed A.W.R. with back and side pain due to
trauma. On cross-examination, Deacon admitted that A.W.R. also refers to his step-
father as his “dad.” He testified that if John were out of the country during this time, it
would be difficult for him to be the perpetrator.
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John contends that this incident cannot be attributed to him because (1) he was
out of the country during this time; and (2) the record is unclear as to which “dad”
struck A.W.R. However, information that John was out of the country was presented
through his attorney during cross-examination of Dr. Deacon. It is not evidence. See
Collier Servs. Corp. v. Salinas, 812 S.W.2d 372, 377 (Tex. App.—Corpus Christi 1991, no
pet.). Moreover, as factfinder, the trial court bore the burden of assessing the credibility
of the witnesses and resolving any conflicts in the evidence. See In the Interest of M.G.M.,
163 S.W.3d 191, 202 (Tex. App.—Beaumont 2005, no pet.); see also Vongontard v. Tippit,
137 S.W.3d 109, 113 (Tex. App.—Houston [1st Dist.] 2004, no pet.). In doing so, the trial
court could have determined that John, not the step-father, struck A.W.R.
Prior Acts of Violence Involving Unrelated Individuals
Colleen Tobey with the Department testified that there are other victims from
other counties who claim to have been abused by John. She explained that the findings
from those counties are consistent with her findings of abuse.
In her letter, Stovall described a December 2002 incident, involving a physical
altercation between John and his former step-son. The step-son alleged that John
“grabbed him by his collar, put his leg behind him and slammed him to the ground.”
John claimed that he was grabbed by the collar and he and the step-son both fell to the
ground. The step-son claimed to have sprained his back, but no marks were left. The
Department found the incident “unable to determine.” See Comer, 2004 Tex. App.
LEXIS 10759, at *5 n.6; see also 40 TEX. ADMIN. CODE § 700.511(a)(4), (b)(4).
In re A.W.R. Page 9
A.W.R.’s Credibility
Jack Rushing, John’s brother, testified that he would not be surprised if A.W.R.’s
2008 injury resulted when he and Jack’s daughter collided while playing during a
Christmastime visit. He testified that A.W.R. also played outside on the trampoline.
Werthmann testified that John told her that he was wrestling with A.W.R. and
may have struck him in the eye with his elbow. She suggested the possibility of
parental alienation, explaining that A.W.R. may be parroting information or quotes
from Marilyn. She testified that when a child feels pressure to choose sides, he may
experience ailments and aggression and may invent situations to avoid visitation. She
admitted that Marilyn may be trying to protect A.W.R. Werthmann lacked enough
material to determine whether parental alienation is occurring.
Deacon admitted that A.W.R. has a history of unexplained fever and other
ailments. He testified that a child may lie about injuries and that A.W.R.’s version of
the 2008 events could be an attempt to please Marilyn. He did not suspect that A.W.R.
was being coerced or coached.
Tobey testified that she has interviewed children in the past and had no reason to
believe that A.W.R.’s story is fictitious. Nor had the case worker ever indicated such a
belief. Tobey testified that she received no information refuting A.W.R.’s statements,
but admitted that John has not been interviewed by the Department.
In her letter, Stovall stated, “At this time the investigation has not found
significant actions to warrant a request to the parents to modify the existing orders to
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ensure the safety of the child.” She explained that the “injuries are not substantial and
the child’s actions do not match his statements in regards to his father.”
The trial court was in the best position to evaluate the credibility and weight of
A.W.R.’s story and was entitled to believe that his accounts of the relevant events were
truthful. See M.G.M., 163 S.W.3d at 202; see also Vongontard, 137 S.W.3d at 113.
Opinions Regarding Abuse
Tobey testified that there is a history of abuse and A.W.R. had made statements
of abuse, such as being hit by John. She opined that A.W.R. has been physically abused
by John. In fact, Tobey testified that the Department would be forced to intervene had
Marilyn failed to take action to protect A.W.R. Deacon also opined that A.W.R. was in
an abusive situation.
Werthmann strongly recommended reinitiating contact between John and
A.W.R. under the guidance of a therapeutic person. She noted that A.W.R. responds to
John in a day care setting and through emails. She admitted that A.W.R. could also be
afraid, but she saw that A.W.R. wants a relationship with John. She did not believe that
A.W.R. was communicating in such a way as to indicate otherwise. Werthmann
explained that John shows a compromising attitude and no concern about A.W.R. being
with Marilyn. This is the type of person that she would normally advocate placing the
child with because that person is more willing to foster visitation and communication.
Again, as trier of fact, the trial court bore the burden of weighing the credibility
of the witnesses and resolving any conflicts in the evidence. See M.G.M., 163 S.W.3d at
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202; see also Vongontard, 137 S.W.3d at 113. The trial court was entitled to resolve the
conflicting opinions of abuse either for or against John.
Summary
After considering and weighing all the evidence, we conclude that the trial
court’s finding that family violence will likely occur in the future is not “so contrary to
the overwhelming weight of the evidence that the verdict is clearly wrong and unjust.”
Checker Bag Co. v. Washington, 27 S.W.3d 625, 633 (Tex. App.—Waco 2000, pet. denied);
see T.L.S., 170 S.W.3d at 166. Because the evidence is factually sufficient, we overrule
issue three.
CONCLUSION
Having overruled John’s three issues, we affirm the trial court’s order.
FELIPE REYNA
Justice
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Affirmed
Opinion delivered and filed August 11, 2010
[CV06]
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