Dreylin L. Johnson v. Alejandra E. Garcia ( 2019 )

Affirmed and Memorandum Opinion filed August 27, 2019.
In The
Fourteenth Court of Appeals
NO. 14-18-00397-CV
DREYLIN L. JOHNSON, Appellant
V.
ALEJANDRA E. GARCIA, Appellee
On Appeal from the 280th District Court
Harris County, Texas
Trial Court Cause No. 2018-10251
MEMORANDUM OPINION
Dreylin Johnson appeals from the trial court’s entry of a protective order in
favor of Alejandra Garcia, the mother of Johnson’s child. In a single issue, Johnson
challenges the legal and factual sufficiency of the evidence to support the entry of
the protective order and the award of attorney’s fees for the State, which sought the
protective order on behalf of Garcia. We affirm.
Background
At the protective order hearing, Garcia testified that Johnson was the father
of her child, they were in a relationship for two years or less, they had lived
together at one point, and he had assaulted or threatened her in the past. The first
such incident Garcia recounted occurred on November 24, 2017. Garcia said that
after Johnson cancelled her cell phone service, she asked him why he had done so.
He then started an argument and pushed her against the wall, causing her to hit her
head. Garcia said that she pushed Johnson back because she was scared, but
Johnson kept pushing her until she fell to the ground. When she tried to call 911,
Johnson threw her phone against the wall, knocking a hole in the wall. Garcia said
that this incident was not the first time Johnson had pushed her.
Garcia described another incident that occurred on December 21, 2017, a
week after Johnson had “kicked” her out of the apartment. They had arranged for
Garcia to come to the apartment with their daughter so that Johnson could see the
child. Garcia said that she saw Johnson’s new girlfriend at the apartment and took
the child back from his arms. According to Garcia, Johnson then tried to fight her
over their daughter. As Garcia was trying to leave, Johnson grabbed Garcia’s wrist
or arm and twisted it. Garcia was screaming for him to stop, but he would not, so
she pulled her arm away. Exhibit 1 was admitted into evidence, and Garcia
asserted that it showed a bruise on her arm caused by Johnson’s thumb.
Garcia further testified that on February 3, 2018, they agreed Johnson could
come to the house where Garcia and their daughter were living so that Johnson
could see the girl. Garcia said that appellant sat down for a minute with the girl but
then got up and said that he was taking her. Garcia told him “no,” took the girl
back from Johnson, and attempted to call the police. According to Garcia, Johnson
hung up the phone and started punching her on her back, very hard, with a closed
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fist. She again attempted to call the police, but Johnson took the phone from her.
Garcia ran outside with the child, and Johnson followed her and began pulling
Garcia’s hair, “dragging” her toward his car. Garcia managed to get away and ran
to a neighbor’s house, where she pounded on the door with one arm while holding
the child with the other. Garcia said that Johnson was pulling on the child’s
sweater.
When the neighbor opened the door, Garcia ran inside as Johnson fought
with the neighbor for entry into the house. Johnson finally left the house, and the
neighbor called the police. An emergency medical technician examined the child
because the child had marks on her back from where Johnson had been pulling on
her sweater. Garcia also stated that Johnson had injured her during the incident and
offered Exhibit 2 to show bruising on her upper arm. Exhibit 3 was a magistrate’s
protective order that was entered against Johnson after the February incident.
Lastly, State’s counsel asked Garcia why she thought threats of violence would
continue if a protective order was not granted, and Garcia replied, “He’s been
violent before, he’ll be violent again.”
Johnson testified regarding the December 2017 incident that Garcia had
agreed to drop off their child at his apartment. He met Garcia in the parking lot, but
according to Johnson, Garcia ran up to his apartment, went inside, and saw his
girlfriend in the bedroom. Johnson said that Garcia then started pulling on their
daughter and hitting him, then she pushed him down while he was holding the
child and pushed his girlfriend. When Garcia again started pulling on the child,
Johnson let go, and Garcia left with the child.
Although he was not specific about the date, Johnson acknowledged that
there was an earlier incident when he and Garcia were living together and he
cancelled her phone. According to Johnson, Garcia yelled at him and threw things
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at him. He said that to stop her from assaulting him further, he pushed her back.
She called the police, but the police did not arrest Johnson at that time.
As to the February 2018 incident, Johnson testified that he had gone to
where Garcia was living to see their daughter. Garcia invited him inside the house,
and he sat down for a few minutes with his daughter on his lap before telling
Garcia that he wanted to take the girl to see his mother. He then started walking
towards the door, and Garcia began pulling on the girl while saying that Johnson
could not take her. According to Johnson, the child began screaming, so he hit
Garcia on her back to make her stop hurting the girl, but Garcia kept pulling and he
let the girl go. Garcia then ran to the neighbor’s house with the girl. Johnson
denied grabbing Garcia by the hair or dragging her towards his car, and he denied
trying to force his way into the neighbor’s house. He acknowledged, however, that
when Garcia was entering the neighbor’s house, he had his hand on their
daughter’s sweater. He further acknowledged that he was charged with assault and
interfering with an emergency phone call based on the February incident.
Johnson additionally testified that he had never been violent with Garcia
except to protect himself, he had never visited her workplace or residence
uninvited, and he had never stalked her or followed her in a menacing way. He said
that he has family that could help facilitate exchanges of their daughter so that he
would not need to meet with Garcia himself.
Johnson’s girlfriend testified about the December 2017 incident. She was in
the bedroom of Johnson’s apartment folding clothes when Johnson walked in
followed by Garcia, who was yelling. According to the girlfriend, Garcia pushed
and hit Johnson, and when the girlfriend tried to get the child safely away, Garcia
pushed her as well. Garcia then pushed Johnson again, and he fell to the floor with
the child. He then let go of the child, and Garcia left with the child. The girlfriend
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said that Johnson suffered scratches on several parts of his body during the
encounter but they did not take photographs of his injuries. Johnson’s father also
testified, saying that he did not observe anything that concerned him between
Johnson and Garcia and that he could serve as an intermediary to facilitate
exchanges of the child between Johnson and Garcia. The State also offered
testimony in support of its request for attorney’s fees and sought an award of $900
in attorney’s fees.
At the conclusion of the hearing, the trial court indicated that it found that
family violence had occurred and was likely to occur again if the court did not
grant the protective order. In the order, the court echoed the same findings,
provided detailed restrictions against Johnson, and awarded $900 in attorney’s fees
to the State.
Standards of Review
In his sole issue, Johnson contends the evidence is legally and factually
insufficient to support the trial court’s issuance of a protective order and award of
$900 in attorney’s fees. When, as here, a trial court acts as a factfinder, we review
its findings under the legal and factual sufficiency standards. In re Doe, 19 S.W.3d
249, 253 (Tex. 2000); Caballero v. Caballero, No. 14-16-00513-CV, 2017 WL
6374724, at *3 (Tex. App.—Houston [14th Dist.] Dec. 14, 2017, no pet.) (mem.
op.).
In a legal sufficiency challenge, we view the evidence in the light most
favorable to the judgment and indulge every reasonable inference that would
support it. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). We must
credit favorable evidence if a reasonable factfinder could and disregard contrary
evidence unless a reasonable factfinder could not. Id. at 807, 827. A legal
sufficiency challenge to a family violence protective order may be sustained only
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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. Caballero, 2017 WL 6374724, at *3. More than a scintilla
of evidence exists if the evidence furnishes some basis for reasonable minds to
reach differing conclusions about a vital fact’s existence. See Lee Lewis Constr.,
Inc. v. Harrison, 70 S.W.3d 778, 782–83 (Tex. 2001).
When reviewing the factual sufficiency of the evidence, we examine the
entire record, considering evidence both in favor of and contrary to the challenged
findings. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). We will set aside a
factual finding only if it is so contrary to the overwhelming weight of the evidence
as to be clearly wrong and unjust. See Pool v. Ford Motor Co., 715 S.W.2d 629,
635 (Tex. 1986). The trier of fact is the sole judge of the credibility of the
witnesses and the weight to afford their testimony. GTE Mobilnet of S. Tex. Ltd. v.
Pascouet, 61 S.W.3d 599, 615–16 (Tex. App.—Houston [14th Dist.] 2001, pet.
denied). We will not substitute our judgment for that of the factfinder merely
because we might reach a different conclusion. Mar. Overseas Corp. v. Ellis, 971
S.W.2d 402, 407 (Tex. 1998).
Protective Order
The Family Code provides for issuance of a protective order if the trial court
finds that family violence has occurred and is likely to occur in the future. Tex.
Fam. Code §§ 81.001, 85.001(b). “Family violence” is defined, in pertinent part, as
an
act by a member of a family . . . against another member of the family
. . . that is intended to result in physical harm, bodily injury, assault, or
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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.
Id. § 71.004(1). “Family” is defined to include “individuals who are the parents of
the same child.” Tex. Fam. Code § 71.003.
In his brief, Johnson acknowledges that “the evidence indicates that these
parents engaged in acts that could be considered domestic violence.” He further
agrees that caselaw indicates that evidence of past violent conduct alone can
constitute competent evidence that is legally and factually sufficient to sustain the
award of a protective order. See, e.g., Teel v. Shifflett, 309 S.W.3d 597, 604 (Tex.
App.—Houston [14th Dist.] 2010, pet. denied); Banargent v. Brent, No. 14–05–
00574–CV, 2006 WL 462268, at *1–2 (Tex. App.—Houston [14th Dist.] Feb. 28,
2006, no pet.) (mem. op.). Johnson argues, however, that the evidence is
insufficient in this case because (1) Garcia’s testimony regarding the potential of
future violence was conclusory, and (2) there was no evidence regarding how
future violence might occur in light of the evidence that Johnson had never gone to
Garcia’s residence or workplace uninvited and exchanges of the child could be
handled through intermediaries.
As for Garcia’s allegedly conclusory testimony, Johnson highlights her
statement that family violence was likely to occur in the future in the absence of a
protective order because “[h]e’s been violent before, he’ll be violent again.” The
trial court, however, did not need someone to testify directly to the likelihood of
future violence; that inference could be made by the trial court as factfinder from
the evidence of past family violence occurring on three separate occasions. See,
e.g., Teel, 309 S.W.3d at 604 (“The trial court reasonably could have concluded
that future violence is likely to occur based on the testimony showing a pattern of
violent behavior.”); Banargent, 2006 WL 462268, at *1–2 (“While past violence
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does not mandate a finding of likely future violence, it can support such a finding
in some instances, such as here, where there were multiple instances of past
violence . . . .”).
The testimony that Johnson had intermediaries available to facilitate the
exchange of his and Garcia’s daughter for visitation can only be seen as a positive
development. However, based on the evidence detailed above about repeat violent
encounters, the trial court reasonably could have concluded that future family
violence was still likely to occur unless a protective order was granted. There was
no evidence that intermediaries always would be available or that Johnson always
would use intermediaries. And, even if Johnson had so testified, the trial court—as
sole judge of the credibility of witnesses—could have disregarded that testimony
even though it was not directly controverted. See GTE Mobilnet, 61 S.W.3d at
615–16. Accordingly, the fact that Johnson testified regarding the existence of
intermediaries and that he had not gone to Garcia’s residence or place of
employment uninvited did not render the evidence legally or factually insufficient.
See Teel, 309 S.W.3d at 604; Banargent, 2006 WL 462268, at *1–2.
Attorney’s Fees
The only assertion that Johnson makes in regard to the award of attorney’s
fees is that “[w]ithout testimony as to actual attorney’s fees incurred by the Harris
County District Attorney’s office any award of attorney’s fees would be based on
speculation.” Johnson does not make any further statement and cites no relevant
authority in support of this assertion. Accordingly, the issue is inadequately
briefed. See Tex. R. App. P. 38.1(i); Bruce v. Cauthen, 515 S.W.3d 495, 513 (Tex.
App.—Houston [14th Dist.] 2017, pet. denied). Johnson has thus waived the issue
for appellate review.
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Finding no basis for appellate relief in any of Johnson’s appellate arguments,
we overrule his sole issue.
We affirm the trial court’s protective order.
/s/ Frances Bourliot
Justice
Panel consists of Chief Justice Frost and Justices Jewell and Bourliot.
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