Ramon Flanigan v. Anna Glasgow ( 2012 )

MEMORANDUM OPINION
No. 04-11-00516-CV
Ramon K. FLANIGAN,
Appellant
v.
Anna GLASGOW,
Appellee
From the 150th Judicial District Court, Bexar County, Texas
Trial Court No. 2011-CI-04741
Honorable Barbara Hanson Nellermoe, Judge Presiding
Opinion by: Phylis J. Speedlin, Justice
Sitting: Catherine Stone, Chief Justice
Phylis J. Speedlin, Justice
Steven C. Hilbig, Justice
Delivered and Filed: August 1, 2012
AFFIRMED
Ramon Flanigan challenges a protective order entered in favor of Anna Glasgow. We
affirm the judgment of the trial court.
BACKGROUND
Ramon and Anna dated for over seven years before ending their relationship on February
13, 2009. On March 26, 2009, a protective order was signed by a Denton County district judge
that prohibited Ramon from communicating directly with Anna in a threatening or harassing
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manner or from going within 200 yards of her residence. On March 22, 2011, Anna applied for a
second protective order against Ramon in Bexar County pursuant to section 82.008 1 of the
Family Code, alleging that Ramon violated the March 26, 2009 protective order or that Ramon
committed an act of family violence or dating violence against Anna. Attached to the application
was Anna’s affidavit detailing, among other actions, a threatening email sent to her by Ramon in
May 2009. Also attached to the application was a copy of the prior protective order signed on
March 26, 2009. Ramon received notice of Anna’s application for protective order on March 30,
2011.
On April 27, 2011, a hearing was held on Anna’s application for protective order; the
application was prosecuted by the District Attorney’s Office on Anna’s behalf. Initially, the
State sought to nonsuit the application and proceed on a new application filed the day of the
hearing—this application was substantively the same as the March 22, 2011 application save for
the filing date. Ramon, however, objected to the lack of notice on the new application. The trial
court agreed that the State could not nonsuit the first application after announcing “ready” on the
day of the hearing, but acknowledged that because the application was filed four days before the
expiration of the prior protective order, the operative provision of the Family Code was section
82.0085, not 82.008. See TEX. FAM. CODE ANN. § 82.0085 (West 2008) (application filed before
expiration of previously rendered protective order); id. § 82.008 (West 2008) (application filed
after expiration of former protective order). The trial court thus denied the State’s motion to
nonsuit, and the hearing proceeded on the March 22, 2011 application.
The only witness to testify was Anna. She stated that Ramon was physically abusive
towards her before their relationship ended in 2009, choking, punching, kicking, or slapping her
on occasion. When Anna finally told Ramon she was leaving him, he chased her in his car. The
1
See TEX. FAM. CODE ANN. § 82.008 (West 2008)
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next day she filed for a protective order; it was granted on March 26, 2009 for a period of two
years. Anna testified that Ramon violated the protective order on May 11, 2009 when he came
within 200 yards of her residence. She stated that she called the police and a warrant was issued
for Ramon’s arrest. Anna was forced to move in with her mother and hide from Ramon. She
stated that she moved to Bexar County to keep Ramon from finding her. Anna testified that
Ramon sent her over 50 emails in the first two months of 2011 expressing a desire to reunite with
her. She admitted to calling him three times in the past two years. She called him twice at the
direction of a police detective who told her to clearly communicate to Ramon that she no longer
wanted contact from him; she called him for the same reason a third time of her own volition.
Anna stated that she is afraid of Ramon and that every day she comes home fearing he will be in
her apartment. Although Ramon moved to Mississippi, Anna continues to fear that he will find
her because he has family in Texas and comes to San Antonio often. Ramon once threatened to
shoot Anna in the head.
At the conclusion of the hearing, the trial court granted the two-year protective order,
stating that “the stalking and the following and finding and recontacting after numerous clear
statements of no contact is in the nature of a harassment that can put one in a very uneasy
feeling.” In the order, the trial court found that Ramon “has committed family violence and
family violence is likely to occur in the future pursuant to Section 85.001 of the Texas Family
Code.” The trial court subsequently signed findings of fact and conclusions of law.
Ramon now challenges the protective order, arguing in three issues that: (1) the evidence
presented at the hearing was legally insufficient to support the granting of the protective order;
(2) his due process rights were violated when the protective order was granted; and (3) the
application for protective order was fatally flawed.
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DISCUSSION
We first address Ramon’s sufficiency challenge. A legal sufficiency challenge to a
family violence protective order, like any other legal sufficiency challenge, may be sustained
only when “(1) the record discloses 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 establishes conclusively the opposite of a vital fact.” Wilkerson v. Wilkerson, 321
S.W.3d 110, 115-16 (Tex. App.—Houston [1st Dist.] 2010, pet. dism’d) (quoting Clements v.
Haskovec, 251 S.W.3d 79, 84 (Tex. App.—Corpus Christi 2008, no pet.)). In reviewing the legal
sufficiency of the evidence, a court must consider the evidence in the light most favorable to the
finding and indulge every reasonable inference that would support it. City of Keller v. Wilson,
168 S.W.3d 802, 822 (Tex. 2005). If the evidence allows only one inference, neither the trier of
fact nor the reviewing court may disregard it. Id. However, a reviewing court cannot substitute
its judgment for that of the trier of fact, so long as the evidence falls within the zone of
reasonable disagreement. Id. Moreover, the trier of fact is the sole judge of the credibility of the
witnesses and the weight to be given to their testimony. Id. at 819. We will not substitute our
judgment for that of the trial court merely because we might reach a different conclusion. Id.
Under section 85.001 of the Texas Family Code, the trial court must grant a protective
order upon finding that family violence has occurred and is likely to occur again in the future.
TEX. FAM. CODE ANN. § 85.001(b) (West 2008). 2 In cases involving protective orders against
2
Ramon argues that the trial court erred in granting the protective order under section 85.002, which requires a
finding of a violation of a prior protective order. See TEX. FAM. CODE. ANN. § 85.002 (West 2008). However,
because the trial court specifically issued a protective order pursuant to section 85.001, we will address the
requirements of a protective order under section 85.001. In any event, we reject Ramon’s argument that the
protective order was erroneously granted under section 85.002 because there was witness testimony establishing that
a prior protective order existed and that Ramon violated a provision of the order.
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family or dating violence, evidence that a person has engaged in abusive conduct in the past
permits an inference that the person will continue this behavior in the future. See Teel v.
Shifflett, 309 S.W.3d 597, 604 (Tex. App.—Houston [14th Dist.] 2010, pet. denied).
“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.” Id. (quoting In re
Epperson, 213 S.W.3d 541, 544 (Tex. App.—Texarkana 2007, no pet.)).
Here, the trial court heard testimony that Ramon physically abused Anna, causing her to
first seek a protective order in 2009. Ramon then violated that protective order when he came
within 200 yards of her home. Anna also testified that Ramon sent her hundreds of unwanted
emails during the past two years, including one stating that she had no idea what kind of hell she
would endure for the rest of her life. He also told Anna’s friend that he was going to shoot her
when the protective order expired. Anna stated that she has had to move to two different cities to
avoid Ramon and that she has changed her contact information as well as her job on several
occasions. She constantly fears Ramon will find her and that he will be waiting for her in her
apartment when she comes home.
In view of the entire record, we conclude that there was more than a scintilla of evidence
to support the trial court’s finding that family violence had occurred and was likely to occur in
the future and that the evidence supporting the finding was not so weak or contrary to the
overwhelming weight of all the evidence that the finding should be set aside. Anna testified that
Ramon committed dating violence in the past and that he refused to leave her alone even after
she made clear that the relationship was over. As fact finder, the trial court was free to accept or
reject the testimony of any witness, in whole or in part. See Wright v. Wright, 699 S.W.2d 620,
621 (Tex. App.—San Antonio 1985, writ ref’d n.r.e.); Nordstrom v. Nordstrom, 965 S.W.2d 575,
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580-81 (Tex. App.—Houston [1st Dist.] 1997, pet. denied). The trial could have found Anna
credible and weighed her testimony in favor of needing a protective order. We therefore hold
that the evidence was legally sufficient and overrule Ramon’s issue challenging the evidentiary
sufficiency.
In his second issue, Ramon asserts that his due process right to notice was violated by the
granting of the protective order under section 85.001. See TEX. FAM. CODE ANN. § 85.001 (West
2008) (required findings and orders). We disagree. It is clear from the record that the trial court
proceeded on the March 22, 2011 application for protective order. Ramon received notice of the
application on March 30, 2011—twenty-eight days before the hearing. The application alleged
that Ramon violated the prior protective order or committed an act or acts of family violence or
dating violence against Anna. The application included Anna’s affidavit, which detailed the 52
emails Ramon sent to her in the first two months of 2011 alone. As such, Ramon was on notice
that the trial court would consider his acts of dating violence. We conclude the application gave
Ramon fair and adequate notice of the claims being asserted. See SmithKline Beecham Corp. v.
Doe, 903 S.W.2d 347, 354-55 (Tex. 1995); Teel, 309 S.W.3d at 602. Ramon’s second issue is
therefore overruled.
Finally, Ramon argues that the application for protective order was fatally flawed under
section 82.0085 because it did not include a copy of the prior alleged protective order or a
description of the threatened harm that reasonably placed Anna in fear of imminent physical
harm, bodily injury, assault, or sexual assault. Again, we respectfully disagree. The application
filed on March 22, 2011 did in fact include a copy of the prior protective order from Denton
County. Further, it included Anna’s affidavit detailing Ramon’s actions that cause her to
continually live in fear that he will find her and commit more dating violence against her.
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Accordingly, the application did meet the requirements of section 82.0085. Ramon’s third issue
is overruled.
CONCLUSION
Based on the foregoing, Ramon’s issues on appeal are overruled, and the judgment of the
trial court is affirmed.
Phylis J. Speedlin, Justice
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