Christine Lenore Stary v. Brady Neal Ethridge ( 2022 )

Opinion issued December 15, 2022
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-21-00101-CV
———————————
CHRISTINE LENORE STARY, Appellant
V.
BRADY NEAL ETHRIDGE, Appellee
On Appeal from the 280th District Court
Harris County, Texas
Trial Court Case No. 2020-16834
OPINION
Appellant Christine Lenore Stary appeals from the trial court’s order granting
a lifetime family-violence protective order prohibiting her from communicating with
or going near her three minor children. In four issues, Stary argues that: (1) the trial
court violated her right to due process by granting a lifetime protective order based
only on proof by a preponderance of the evidence rather than by the heightened
standard of proof by clear and convincing evidence; (2) the trial court violated her
right to due process by granting the protective order for a period exceeding two years
on the basis of an unadjudicated felony charge without applying a heightened burden
of proof; (3) the evidence is insufficient to support the trial court’s findings that she
committed family violence and is likely to commit family violence in the future; and
(4) the trial court abused its discretion by excluding evidence of appellee Brady Neal
Ethridge’s domestic abuse of her and denying her request to make an offer of proof.
We affirm.
BACKGROUND
Stary and Ethridge divorced in May 2018. Pursuant to an agreed divorce
decree, the parties share custody of their three children: C.M.E. (“Cindy”), who was
fifteen years old the time of the hearing; O.P.E. (“Naomi”), who was twelve years
old at the time; and G.B.E. (“George”), who was nine years old.1 Ethridge has
possession of the children on Mondays and Tuesdays, Stary has possession of them
on Wednesdays and Thursdays, and the parties alternate possession on weekends
and holidays. After the parties’ divorce, Ethridge remarried.
1
We refer to the children by pseudonyms to protect their identities and privacy.
2
In March 2020, Ethridge filed an application for a protective order, alleging
that Stary had committed acts of family violence and abuse against each of the
children.2 The application requested that the trial court enter a temporary ex parte
order and a final protective order prohibiting Stary from committing family violence
against the children, communicating directly with them, or going anywhere near
them. The application also requested that Stary “complete a battering intervention
and prevention program or counseling” and pay support for the children. Ethridge
requested that the application remain effective longer than two years because Stary’s
actions towards the children allegedly constituted a felony offense involving family
violence.
Ethridge attached several exhibits to the application, including the parties’
agreed final divorce decree and documents from a criminal proceeding pending
against Stary for injury to a child. Ethridge also attached a magistrate’s order for
emergency protection entered in the criminal proceeding, which prohibited Stary
from committing further acts of family violence or communicating with the family
in a threatening or harassing manner, among other things. Ethridge also attached an
order for pretrial supervision and bond conditions entered in the criminal proceeding,
which prohibited Stary from having any contact with the children as a condition of
2
The application also requested protection for Ethridge, but Ethridge waived this
request at the hearing on the protective order.
3
her release on bond. Evidence admitted at trial showed that this condition was later
amended to allow Stary supervised visits with the children.
The trial court signed a temporary ex parte protective order prohibiting Stary
from committing family violence, communicating with the children except through
their attorney, and going near their residence, schools, childcare facilities, and any
other place where they are known to be. The order also scheduled a hearing on
Ethridge’s application for a protective order.
At the hearing, the parties appeared and were represented by counsel. Ethridge
testified about several specific incidents during which Stary had hit, scratched, and
otherwise caused physical injury to the children on multiple occasions. One incident
occurred in March 2020, shortly before the application was filed. While the children
were staying with Stary, she “grabbed [George] by the back of the head and beat his
face on the hardwood floor and carpet,” causing bruises, scratches, and bleeding that
required emergency hospital treatment. George was taken to the emergency room
and treated for his injuries. Stary was arrested and indicted for the third-degree
felony offense of injury to a child. See TEX. PENAL CODE § 22.04(a)(3), (f). The
criminal proceeding was still pending at the time of the hearing.
Ethridge also testified that Stary had elbowed Cindy in the ribs, dragged her
out of bed and across the floor by her hair, and kicked her out of the car during a
road trip to Colorado and left her on the side of the road. She fractured Naomi’s
4
wrist, chased her down the street with hedge clippers, and locked her—as well as
George on separate occasions—on the front porch at night and made her sleep
outside.
Ethridge acknowledged that he was not present during these incidents but had
learned about them from his children. Over Stary’s objections, the trial court allowed
Ethridge to testify about what the children had told him happened during these
incidents.
Ethridge also testified that it was not unusual to receive urgent telephone calls
from the children while they were with Stary. He also testified that Stary had been
reported to child protective services at least five times. The trial court admitted into
evidence the parties’ final divorce decree; Stary’s felony indictment for injury to a
child; an emergency protective order entered in the criminal proceeding; George’s
medical and ambulance records from the March 2020 incident; and photos of
George’s injuries from this incident.
After Ethridge testified, Ethridge’s counsel reminded the court of his motion
requesting that the court interview the children. The trial court granted the motion,
and the hearing was continued. When the hearing resumed nearly a month later, the
trial court stated that it had interviewed each of the children but did not reveal any
details of the interviews. The trial court stated that the children’s amicus attorney
5
was the only person present in chambers with the judge and the children during the
interview.
As her first witness, Stary called the parent of a student whom Stary taught as
a kindergarten teacher. The parent testified generally about Stary’s character and
reputation for being a firm but gentle, nonviolent disciplinarian.
Stary also testified.3 She denied ever harming the children or committing
family violence. She gave excuses for the children’s injuries, such as the children
fighting with each other or running carelessly through the house. Her counsel
attempted to ask her questions about Ethridge physically abusing her, but the trial
court sustained relevancy objections to the testimony and denied Stary’s request to
make an offer of proof. Stary had attempted to ask Ethridge similar questions on
cross-examination, and the trial court had also sustained objections to those
questions.
At the end of the hearing, the trial court orally granted the protective order.
The trial court ordered Stary not to have any contact with the children, stating that
the order would remain in effect “in permanent duration for [Stary’s] lifetime”
3
Prior to Stary testifying, the trial court admonished her about her Fifth Amendment
right not to incriminate herself in her ongoing criminal proceeding by testifying at
the hearing. See U.S. CONST. amend. V. Stary acknowledged the admonishment,
stated that she wanted to testify, and affirmatively waived her Fifth Amendment
right against self-incrimination.
6
subject to the children filing a motion to modify the order. The trial court also
ordered Ethridge to keep the children in counseling, and it stated that the counselor
should “make the decision on when the children might be ready to start reunification,
or kind of, building back the relationship with [Stary].”
The trial court subsequently entered a written, final protective order. The order
included findings that Ethridge, Stary, and the three children are members of the
same family; family violence has occurred and is likely to occur in the future; and
that Stary’s actions against at least one of the children would constitute a felony if
charged. The order prohibited Stary from communicating with the children except
through their attorney or counselor, engaging in harassing or annoying conduct
toward the children, and going near their known location, residence, schools, and
childcare facilities. Stary was ordered to submit to a psychological evaluation and
complete a course on domestic violence and children. The order assessed Ethridge’s
attorney’s fees against Stary and ordered each party to pay half of the attorney’s fees
for the children’s amicus attorney. Based on the finding that Stary’s actions
specifically towards George would constitute a felony, the order stated that it “shall
remain permanently in full force and effect until such time as this order may be
vacated or modified.”
Stary filed a request for findings of fact and conclusions of law. The record
does not include a ruling on this request.
7
Stary also filed a combined motion for new trial and motion to modify,
correct, or reform the judgment. She argued that Ethridge was the only witness to
testify at the hearing, but he was not present for and had no personal knowledge of
any of the incidents of family violence that he testified about. She further argued that
his testimony was based solely on inadmissible hearsay. She challenged the legal
and factual sufficiency of the evidence supporting the order. She argued that the trial
court improperly excluded evidence about Ethridge’s domestic violence. Finally, she
argued that the indefinite protective order “is tantamount to a termination of parental
rights of [Stary].” The trial court entered a written order denying the motion for new
trial. This appeal followed.4
Due Process
In her first two issues, Stary complains about the standard of proof that the
trial court applied to the protective order proceeding. She argues that the trial court
violated her right to due process by applying the preponderance-of-the-evidence
standard generally applied in protective order proceedings. However, she argues that
the protective order effectively terminates her parental rights because it prohibits her
from contacting or seeing her children indefinitely, and therefore due process
4
Ethridge did not file an appellate brief.
8
requires applying the heightened standard of proof by clear and convincing evidence
applicable to parental termination proceedings.
Stary’s first two issues are similar. Her first issue argues that due process
requires clear and convincing evidence to enter a protective order for life. Her second
issue argues that the trial court did not afford her the constitutional protections
afforded to criminal defendants in finding that her actions constituted a felony
offense. Because Stary’s arguments on these two issues are similar, we consider
them together.
A. Standard of Review and Governing Law
Whether a party has been deprived of a constitutional right is an issue of law
that we review de novo. Scally v. Tex. State Bd. of Med. Exam’rs, 351 S.W.3d 434,
446 (Tex. App.—Austin 2011, pet. denied).
For due process purposes, a standard of proof serves to “instruct the fact finder
concerning the degree of confidence our society thinks he should have in the
correctness of factual conclusions for a particular type of adjudication.” Addison v.
Texas, 441 U.S. 418, 423 (1979) (quoting In re Winship, 397 U.S. 358, 370 (1970)).
“The standard serves to allocate the risk of error between the litigants and to indicate
the relative importance attached to the ultimate decision.” Id.Parents have a fundamental liberty interest in the care, custody, and control of
their children. In re N.G., 577 S.W.3d 230, 235 (Tex. 2019) (per curiam) (citing U.S.
9
CONST. amend. XIV, § 1, and TEX. CONST. art. I, § 19); see Troxel v. Granville, 530
U.S. 57, 65–66 (2000) (“[T]he custody, care and nurture of the child reside first in
the parents, whose primary function and freedom include preparation for obligations
the state can neither supply nor hinder.”); Stanley v. Illinois, 405 U.S. 645, 651
(1972) (emphasizing “the importance of the family,” and recognizing rights to
conceive and to raise one’s children are “essential,” “basic civil rights of man,” and
“(r)ights far more precious . . . than property rights”). In order to involuntarily
terminate a parent’s rights to her child, due process requires proof by clear and
convincing evidence. In re N.G., 577 S.W.3d at 235; In re G.M., 596 S.W.2d 846,
847 (Tex. 1980); see TEX. FAM. CODE § 161.001(b) (requiring proof by clear and
convincing evidence to terminate parent-child relationship). “Due process compels
this heightened standard because terminating the parent-child relationship imposes
permanent, irrevocable consequences.” In re N.G., 577 S.W.3d at 235 (quoting In re
J.A.J., 243 S.W.3d 611, 616 (Tex. 2007)).
Protective orders generally are not permanent but are effective for up to two
years. TEX. FAM. CODE § 85.025(a). The trial court may, however, render a
protective order effective for more than two years if it finds that the subject of the
protective order “committed an act constituting a felony offense involving family
violence against the applicant or a member of the applicant’s family . . . , regardless
of whether the person has been charged with or convicted of the offense.” Id.
10
§ 85.025(a), (a-1)(1). If a court renders or orders a protective order to be in effect for
longer than two years, the subject of the protective order has a right to later file a
motion requesting that the trial review the order to determine whether a continuing
need exists for the order. Id. § 85.025(b). The subject must wait one year after the
order is entered to file the motion. Id. If the motion is unsuccessful, the subject may
file one additional motion requesting review of the protective order a year after the
prior order denying review was entered. Id. § 85.025(b-1).
B. Analysis
As stated above, Stary complains that application of a preponderance-of-the-
evidence standard violated her right to due process. She argues that a lifetime
protective order is equivalent to a termination of her parental rights, and therefore
that the trial court should have applied the clear and convincing evidence standard
applicable to parental-termination cases. She argues that the lifetime protective order
effectively terminates her parental rights because she cannot see or communicate
with her children, learn about their school activities, or have any relationship with
them. She also argues that the trial court found that her actions constituted a felony
offense without affording her the constitutional protections due to criminal
defendants.
The protective order included findings that Stary had committed family
violence and would likely commit family violence in the future. It also found that
11
Stary’s conduct against “at least one of the minor children” would be a felony if
charged. Based on this finding, it granted a protective order “of permanent
duration.”5 See id. § 85.025 (a-1)(1).
Stary first argues that a lifetime protective order effectively terminates her
parental rights. We disagree. “[A]n order terminating the parent-child relationship
divests the parent and the child of all legal rights and duties with respect to each
other, except that the child retains the right to inherit from and through the parent
unless the court otherwise provides.” Id. § 161.206(b). The validity of the order may
not be directly or collaterally attacked more than six months after it issues if the
parent whose rights were terminated was personally served. Id. § 161.211(a). A
parent whose rights were terminated may file a petition to reinstate her parental
rights so long as certain conditions are met, including that the suit to terminate
parental rights was filed by the Department of Family and Protective Services and
the child has not been adopted and is not the subject of an adoption agreement. Id. §
161.302(b).
5
The protective order states that the permanent duration of the order is “subject to
[Ethridge] or any of the [children] filing a motion to vacate or a motion to modify
this protective order.” The order also states that the counselor for each child “shall
specifically consider whether and when the child is ready to begin reunification with
[Stary].” Stary does not challenge any inconsistency in these provisions or any
deprivation of her own ability to file a motion to vacate or to modify the protective
order. We note that Stary has a statutory right to seek review of the protective order
to determine whether a continuing need exists for it. See TEX. FAM. CODE
§ 85.025(b), (b-1).
12
A protective order protecting a child from a parent’s family violence, on the
other hand, is generally not permanent. See id. § 85.025(a) (stating that protective
orders generally should not exceed two years). Nor does it divest the parent of all
legal rights and duties with respect to each other, even if the duration of the order is
indefinite. Rather, protective orders require a person found to have committed family
violence to perform or to refrain from performing certain acts. Id. § 85.022. The
Family Code includes a non-exhaustive list of actions that trial courts may prohibit
a person found to have committed family violence from engaging in, including:
(1) committing family violence; (2) communicating with the protected person
except through the person’s attorney or representative; (3) going near the protected
person’s residence, place of employment, child-care facility, or school; (4) engaging
in conduct directed specifically toward a protected person that is reasonably likely
to harass, annoy, alarm, abuse, torment, or embarrass the person; (5) possessing a
firearm; and (6) harming, threatening, or interfering with a protected person’s pet or
companion or assistance animal. Id. at § 85.022(b); see Rodriguez v. Doe, 614
S.W.3d 380, 385–86 (Tex. App.—Houston [14th Dist.] 2020, no pet.) (concluding
that section 85.022(b) list is not exhaustive).
Importantly, unlike for termination of parental rights, the Family Code does
not authorize a trial court to divest a parent of all legal rights and duties with
respected to a protected child. Compare TEX. FAM. CODE § 85.022(b) with id.
13
§ 161.206(b). Thus, the scope of the rights affected by a protective order, even for
an indefinite time period, is more limited than the rights affected by a parental
termination case.
Here, the protective order does not state that it terminates Stary’s parental
rights. Nor does it actually divest Stary and her children of all legal rights and duties
with respect to each other. See id. § 161.206(b) (stating that parental termination
order “divests the parent and the child of all legal rights and duties with respect to
each other”). To the contrary, it only prohibits certain specific actions, including
prohibiting Stary from committing family violence or taking other action intended
to physically harm or injure the children; communicating with them except through
their attorney or counselor; engaging in conduct reasonably likely to harass, annoy,
alarm, abuse, torment, or embarrass them; harming, threatening, or interfering with
their pets; going near any location where they are known to be and their residence,
child-care facilities, and schools; and possessing a firearm or ammunition. See id.
§ 85.022(b); Rodriguez, 614 S.W.3d at 385–86.
When read in conjunction with the parties’ agreed final divorce decree, which
the trial court admitted into evidence at the hearing, Stary retains many rights and
duties regarding her children. For example, the divorce decree expressly grants Stary
the rights to receive information and records about the children’s health, education,
and welfare; to confer with Ethridge when possible in making decisions about the
14
children’s health, education, and welfare; and to consent to medical, dental, and
surgical procedures and education decisions subject to Ethridge’s agreement. It also
grants her other rights, many of which do not conflict with the prohibitions in the
protective order and therefore remain in effect. Thus, Stary retains some parental
rights. Undoubtedly, the rights she retains pale in comparison to the rights she lost
by the protective order. But the retention of some rights distinguishes the protective
order in this case from an order in a parental termination case.
Another major distinguishing factor between a protective order and an order
terminating parental rights is the ability of the parent subject to the order to later
request the trial court to vacate or modify the order. In parental-termination cases,
termination of rights “is complete, final, and irrevocable. It divests forever the parent
and child of all legal rights, privileges, duties, and powers between each other except
for the child’s right to inherit.” In re G.M., 596 S.W.2d at 846; see TEX. FAM. CODE
§ 161.206(b) (stating with limited exceptions for post-termination contact, “an order
terminating the parent child-relationship divests the parent and the child of all legal
rights and duties with respect to each other, except that the child retains the right to
inherit from and through the parent”). A former parent whose parental rights were
involuntarily terminated may file a petition to reinstate her parental rights only in
very limited circumstances, including when the termination suit was instituted by
the Department of Family and Protective Services and the child has not been adopted
15
and is not subject to an adoption placement agreement. TEX. FAM. CODE
§ 161.302(a)(4), (b).
A parent subject to a protective order effective for longer than two years, on
the other hand, may file a motion requesting that the trial court review the protective
order to determine whether a continuing need exists for protection. Id § 85.025(b).
There are conditions, however. The parent must wait one year after the trial court
signs the protective order to seek review of it, and she must wait another year to seek
review again if the trial court denies her first motion for review. Id. § 85.025(b), (b-
1). The parent is also limited to two motions for review; if both are denied, the
protective order remains in effect until its stated expiration date. Id. § 85.025(b-2).
Stary argues that because the protective order is effective indefinitely, she
would forever lose her parental rights if she is unsuccessful after two attempts to
persuade the trial court that no continuing need exists for the order. But, even a
limited opportunity to seek review of a protective order renders it impermanent,
unlike a parental termination which is “complete, final, and irrevocable.” See In re
G.M., 596 S.W.2d at 846. We note that the protective order itself provides Stary with
a path forward. It orders her to submit to a psychological evaluation and, if
necessary, treatment, and it orders her to complete an online course for domestic
violence and children. It also orders Ethridge to maintain counseling for the children,
and for each child’s counselor to “specifically consider whether and when the child
16
is ready to begin reunification with” Stary. As discussed in further detail below, the
evidence at the hearing indicated that Stary committed multiple acts of physical
violence causing serious physical injury to each of her three children, including
fractured wrists, rib contusions, and body scratches, bruises, and bleeding. Stary has
the opportunity to take advantage of these resources and learn to have a nonviolent
parent-child relationship so thatshe can show the trial court in the future that no
continuing need exists for the protective order.
Finally, Stary argues that the trial court violated her constitutional rights in
finding that she committed a felony involving family violence. She argues that she
was not afforded the constitutional protections due to criminal defendants or to
parents facing parental termination. However, the protective order proceeding is a
civil proceeding, not a criminal proceeding. To render a protective order effective
for more than two years, the trial court must find that the subject of the order
“committed an act constituting a felony offense involving family violence against
the applicant or a member of the applicant’s family . . . , regardless of whether the
person has been charged with or convicted of the offense.” TEX. FAM. CODE
§ 85.025(a-1)(1). Thus, the protective order proceeding did not adjudicate Stary’s
guilt for any criminal offense, but rather adjudicated whether Stary’s actions
constituted a felony offense as a condition of rendering a protective order effective
for longer than two years. Stary was not entitled to an evidentiary standard of proof
17
beyond a reasonable doubt, as required in a criminal trial of a felony offense. 6 The
finding that actions constituted a felony offense only allows the trial court to extend
the protective order beyond two years.
Stary does not rely on any legal authority supporting the premise of her
argument that a lifetime protective order amounts to a termination of parental rights.
Our own research has not revealed any legal authority directly on point. We note,
however, that a few opinions have rejected the application of a heightened burden
of proof in family-violence, protective-order proceedings.
In Turner v. Roberson, the trial court entered a protective order against a
father, prohibiting him “from making any type of contact with [his] child.” No. 05-
11-01272-CV, 2013 WL 2152636, at *3 (Tex. App.—Dallas May 17, 2013, no pet.)
(mem. op.). Like Stary, the father argued on appeal that the order effectively
terminated his parental rights and therefore required proof by clear and convincing
evidence. Id. It is unclear from the opinion whether the protective order was effective
for longer than two years. The Dallas Court of Appeals disagreed with the father,
however, and concluded that the protective order did not terminate the father’s
6
We note that, prior to Stary’s testimony at the hearing, the trial court admonished
her and her counsel that she had a right to remain silent in the protective order
proceeding because of her ongoing criminal proceeding and that her testimony in
the former could be used against her in the latter. Stary affirmatively acknowledged
that she waived her Fifth Amendment right and wanted to testify.
18
rights. Id. at *4. The court reasoned that the protective order did not state that it
terminated the father’s rights as to his child, and section 85.022(b) of the Family
Code permits the restrictions included in the order. Id. The same is true here.
Outside of the parent-child context, the Dallas Court of Appeals has
concluded that an estranged boyfriend was not denied due process by the trial court’s
application of the standard of proof by a preponderance of the evidence at a
protective order hearing. Roper v. Jolliffe, 493 S.W.3d 624, 638 (Tex. App.—Dallas
2015, pet. denied). The boyfriend contended that the proceeding was quasi-criminal
and thus required proof by clear and convincing evidence. Id. The court concluded
that the application of the lower standard of proof did not violate the boyfriend’s
due-process rights because the proceeding is civil in nature and the interests at stake
in the case did “not equate to cases that require proof by clear and convincing
evidence, such as termination of parental rights and involuntary mental health
commitment. Id. We acknowledge that the interests at stake here between parent and
child are more significant than those between estranged partners. Nevertheless, we
are not persuaded that these interests require heightened standard of proof in
protective-order proceedings.
The Fourteenth Court of Appeals has rejected a father’s argument that due
process requires an application of the heightened burden of proof by clear and
convincing evidence in protective-order proceedings prohibiting him from
19
contacting his daughter for ten years. Jovel v. Blanco, No. 14-20-00638-CV, 2022
WL 220251, at *3 (Tex. App.—Houston [14th Dist.] Jan. 25, 2022, no pet.) (mem.
op.) (relying on Roper, holding that interests at stake in protective order proceeding
against estranged boyfriend did not equate to those at stake in parental termination
cases). However, the issue was not preserved for appellate review, so these
statements are dicta. See id. The Fourteenth Court of Appeals has also concluded
that a protective order against an ex-husband did not directly infringe on his parental
rights as to minor children from a previous marriage, and therefore due process did
not require a heightened burden of proof. Caballero v. Caballero, No. 14-16-00513-
CV, 2017 WL 6374724, at *5 (Tex. App.—Houston [14th Dist.] Dec. 14, 2017, no
pet.) (mem. op.). But, as in Roper, Caballero did not concern a protective order
between parent and child.
Finally, this Court has stated that factual-sufficiency review of a protective
order does not require proof by the clear-and-convincing-standard of evidence that
applies to parental-termination cases. Boyd v. Palmore, 425 S.W.3d 425, 432 n.3
(Tex. App.—Houston [1st Dist.] 2011, no pet.). Although none of these cases are
directly on point, they reveal an overwhelming rejection of the argument that
protective-order proceedings are the same as termination-of-parental-rights
proceedings, thereby constitutionally requiring a heightened standard of proof.
We overrule Stary’s first and second issues.
20
Sufficiency of Evidence
In her third issue, Stary challenges the sufficiency of the evidence supporting
the trial court’s finding that family violence had occurred and that it was likely to
occur in the future.
A. Standard of Review
When the trial court acts as factfinder, we review its findings for legal and
factual sufficiency. Lei Yang v. Yuzhuo Cao, 629 S.W.3d 666, 670 (Tex. App.—
Houston [1st Dist.] 2021, no pet.). In a legal sufficiency challenge by the party who
did not bear the burden of proof at trial, we consider all of the evidence in the light
most favorable to the prevailing party, indulging every reasonable inference in that
party’s favor and disregarding contrary evidence unless a reasonable factfinder could
not. Id. If more than a mere scintilla of evidence exists, we will overrule the legal
sufficiency challenge. Id. A scintilla of evidence exists if the evidence rises to a level
that would enable reasonable and fair-minded people to reach differing conclusions.
Id.In a factual sufficiency review, we examine the entire record and consider and
weigh all the evidence, both in support of and contrary to the challenged finding.
Boyd, 425 S.W.3d at 429. After considering and weighing all the evidence, we will
set aside the order only if the evidence is so weak, or the finding is so against the
21
great weight and preponderance of the evidence, that it is clearly wrong and unjust.
Id. We cannot substitute our opinion for that of the trial court. Id.
When, as here, the trial court acts as factfinder, it is the sole judge of witness
credibility and the weight to give witness testimony. Townsend v. Vasquez, 569
S.W.3d 796, 807–08 (Tex. App.—Houston [1st Dist.] 2018, pet. denied). The trial
court may choose to believe one witness over another. Id. It may also resolve
inconsistencies in witness testimony, regardless of whether such inconsistencies
result from contradictory accounts of multiple witnesses or from internal
contradictions in the testimony of a single witness. Guimaraes v. Brann, 562 S.W.3d
521, 549 (Tex. App.—Houston [1st Dist.] pet. denied).
B. Governing Law
The Family Code authorizes an adult family member to file an application for
a protective order to protect the applicant or any member of the applicant’s family.
TEX. FAM. CODE § 82.002(a). After a hearing, the trial court must render the
protective order if it finds that family violence has occurred and is likely to occur in
the future. Id. §§ 81.001, 85.001(a), (b); see Boyd, 425 S.W.3d at 429. The definition
of “family violence” includes “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 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
22
not include defensive measures to protect oneself.” TEX. FAM. CODE § 71.004(1);
see Boyd, 425 S.W.3d at 429. “Family” is defined to include a parent and child. TEX.
FAM. CODE § 71.003.
C. Analysis
Stary argues that the evidence is legally and factually insufficient to support
the trial court’s finding that family violence occurred and is likely to occur in the
future. Stary argues that Ethridge’s only evidence consisted of his testimony about
Stary’s actions towards the children during times he was not present, lacked personal
knowledge, and relied entirely on hearsay. Stary argues that one of the children’s
medical records, which were admitted at the hearing, included hearsay. Stary also
argues that Ethridge testified about other incidents of family violence towards the
other children, but he presented no corroborating evidence of these incidents. Stary
finally argues that the trial court erred by denying her character witness the
opportunity to rebut Ethridge’s allegations about her.
1. Legal Sufficiency
As stated above, Ethridge testified at the hearing that Stary had hit, scratched,
and injured the children on multiple occasions. See TEX. FAM. CODE § 71.004(1)
(defining “family violence” to include an act by one family member intending to
result in physical harm or bodily injury to another family member). The primary
incident occurred in March 2020 while the children were staying with Stary for her
23
possession period. Over Stary’s objection, Ethridge testified about what George had
told him about the incident:
[George] explain[ed] that he was severely beaten to where his face was
slammed—[Stary] had grabbed him by the back of the head and beat
his face on the hardwood floor and carpet. And when his nose started
bleeding, you know, of course he turned his head a little bit to the right
and she continued to beat on the—where the bruising from the cheeks
and eyes. And then when that started hurting, he turned his head the
other way and that’s where the top of his ear got pinched between . . .
the floor, while she had her hand in the back of his hair, slamming his
head into the floor, the hardwood floors and carpet.
Ethridge testified that George was “crying and screaming, calling for help.
Asking them [the other children] to call the police. Call 911.” Naomi intervened, and
took George into the bathroom, locked the door, and eventually bathed him before
police arrived and he went to the hospital. Ethridge testified that George told him
that Stary began banging on the door, accusing Naomi of molesting George in the
bathroom. One of the children eventually called 911, and Stary was arrested and
indicted for the third-degree-felony offense of injury to a child. See TEX. PENAL
CODE § 22.04(a)(3), (f). The trial court admitted the criminal indictment against
Stary into evidence.
When Ethridge finally saw George ten or twelve hours after the incident, he
testified that George “was clearly, like excited, shaken up. You know, crying where
he couldn’t catch his breath.” He testified that he personally observed multiple
injuries on George, including “multiple scratches, bruises, direct scabs from blood.
24
Face, neck, arms, legs, you know everywhere skin was showing that clothing wasn’t
covering.” Ethridge testified about several photographs depicting George’s injuries,
which the trial court admitted into evidence. He said that the injuries were visible
for several days. The trial court also admitted into evidence records from the
ambulance ride to the hospital and George’s medical records. Ethridge agreed with
his counsel that he observed all of the injuries documented in the medical reports.
The trial court also allowed Ethridge to testify about Naomi’s statements,
overruling Stary’s hearsay objections.7 According to Ethridge, Naomi told him that
Stary “grabbed [George] by the back of the head and threw him on the floor and beat
his head and drug him by the—his leg around the house. Flipped him over, landed
on top of him and tried to perform an exorcism.” Naomi told Ethridge that George
was screaming and Stary “grabbed her hand and tried to clamp his mouth shut to
keep him from screaming anymore.” Ethridge said that Naomi told him she was
finally able to take George into the bathroom and lock the door, and that Stary began
banging on the door and accusing her of molesting George.
7
The trial court admitted the statements under the hearsay exception for an excited
utterance. See TEX. R. EVID. 803(2) (stating that rule against hearsay does not
exclude excited utterance, defined as “statement relating to a startling event or
condition, made while the declarant was under the stress of excitement that caused
it”). Stary does not challenge this ruling on appeal.
25
Ethridge testified that this was not the only incident. He said it was not unusual
to receive urgent telephone calls from the children while they were staying with
Stary, and it generally happened twice a month. He did not personally observe any
of these incidents, as they occurred while the children stayed with Stary during her
periods of possession, but he saw the children afterwards, observed their symptoms
and injuries, and took them to the hospital for medical care in some instances. He
also testified that Stary has been reported to child protective services at least five
times, although he conceded that CPS had “ruled out” all of the reports.
Ethridge testified that he picked up Cindy from school in March 2019, when
she was eleven years old. Cindy complained about pain in her ribs, telling Ethridge
that Stary had elbowed her in the ribs. Ethridge took Cindy to the emergency room
where doctors diagnosed her with a contusion. She was bruised, had to sleep sitting
up in a chair, and had problems using the restroom due to the contusion. Her doctors
reported the injuries to law enforcement officers.
Stary had also fractured Naomi’s wrist when she was ten years old. Naomi
told Ethridge that Stary pushed her over the side of the bed and she hurt her wrist
catching her fall. In February 2020, Stary chased Naomi down the street with hedge
clippers after getting into an argument. In May 2018, Stary pushed Naomi off a
dresser she was sitting on, telling her not to sit on the furniture and to clean up.
Ethridge testified that he had observed Stary verbally abuse Naomi by calling her
26
names. Stary had also dragged Cindy out of bed by her ponytail, dragged her across
the floor, and shoved dirty socks in her mouth. She had also locked Naomi and
George out of the house on separate occasions and made them sleep on the front
porch.
Finally, Ethridge testified about a road trip that Stary took the children on to
Colorado. During the drive, Stary became upset that Cindy was playing on her cell
phone instead of reading a book. She began to argue with Cindy and eventually
stopped the car on the side of the road and told Cindy to get out. Cindy did so, and
Stary drove off. She returned after Cindy called police.
Although Stary stops short of challenging this testimony as inadmissible, she
argues that Ethridge was not present during any of these incidents, lacked personal
knowledge of them, and relied entirely on hearsay. Indeed, Stary objected almost
exclusively on hearsay grounds during the hearing. However, the Family Code
expressly states that, at a hearing on an application for a protective order, “a
statement made by a child 12 years of age or younger that describes alleged family
violence against the child is admissible as evidence.” TEX. FAM. CODE § 84.006.
Thus, even though Ethridge was not present during these incidents, his testimony
about the children’s statements to him were admissible.8 Furthermore, Ethridge
8
Of course, the statements are only admissible if the child was under twelve years
old when the statement was made. See TEX. FAM. CODE § 84.006. On appeal, Stary
27
testified that he observed the injuries and took the children to seek medical care after
some of the incidents. He said that George’s injuries from the March 2020 incident
were visible for several days. The trial court is the sole judge of Ethridge’s credibility
and demeanor. See Townsend, 569 S.W.3d at 807–08.
Stary also argues that George’s medical records from the March 2020 incident
contained inadmissible hearsay and did not support Ethridge’s testimony.9 Hearsay
is an out-of-court statement offered into evidence to prove the truth of the matter
asserted in the statement. TEX. R. EVID. 801(d); Dallas Morning News, Inc. v. Hall,
579 S.W.3d 370, 378 (Tex. 2019). Generally, hearsay is inadmissible. TEX. R. EVID.
802; Hall, 579 S.W.3d at 378. However, certain statements made for medical
diagnosis or treatment that are hearsay are admissible. TEX. R. EVID. 803(4). Rule
803 authorizes the admission of a statement that “is made for—and is reasonably
pertinent to—medical diagnosis or treatment” and “describes medical history, past
or present symptoms or sensations, their inception, or their general cause.” Id.
does not challenge any of the children’s statements on the ground that the child was
over twelve years of age when the statement was made.
9
Stary does not challenge admission of the medical reports themselves, which were
accompanied by a business records affidavit. See TEX. R. EVID. 803(6) (authorizing
admission of records of regularly conducted activity); Johnson v. State, 624 S.W.3d
579, 586 (Tex. Crim. App. 2021) (“Rule of Evidence 803(6) allows for admission
of medical records so long as counsel provides testimony of a records custodian or
an affidavit that complies with Rule 902(10).”).
28
Stary does not identify which statements in the medical records she challenges
as hearsay. See TEX. R. APP. P. 38.1(i) (requiring appellate briefs to contain clear and
concise argument with appropriate citations to authorities and to record); see
Guimaraes, 562 S.W.3d at 545 (“[A] brief that does not contain citations to
appropriate authorities and to the record for a given issue waives that issue.”). Nor
does she provide any analysis of the various statements to show that they were not
made for purposes of diagnosing or treating George’s injuries. See id.; TEX. R. EVID.
803(4). Thus, she has waived review of this challenge.
In any event, our review of the medical records reveals that they include
statements both by George and by hospital staff, including George’s treating
physician. We have already stated that George’s statements are admissible under
section 84.006 of the Family Code. See TEX. FAM. CODE § 84.006. And, the
statements by hospital staff were made because George had been admitted to the
emergency room following his injuries from Stary. Thus, the record before us
indicates that these statements were made for, and are reasonably pertinent to, the
medical diagnosis and treatment of George’s injuries because they describe his
medical history, symptoms of his injuries, and the inception and general cause of the
injuries. See TEX. R. EVID. 803(4).
29
The medical records include the following statements. George presented with
“Physical Assault” and he was “hit by mother[.]” The report included the following
description of the incident:
9 year old previously healthy here after physical assault by mother.
Reports that there was a conflict this afternoon that resulted in mom
throwing him to the ground multiple times, during which he hit his
forehead. He denies LOC, current dizziness, emesis. He also has
multiple scratches over his arms, neck, and face that he reports occurred
during this confrontation. He states he was dragged on the floor.
He states this happens regularly—scratching and hitting by mom. He
does not feel safe at mom’s home. There is split custody between mom
and dad’s house. He reports feeling safe at dad’s house.
George’s physician included a written statement regarding injury to a child.
According to the statement, George told the physician:
Patient states his mother threw him to the ground and hit his forehead
repeatedly against the ground, she also scratched him over his face,
neck, arms, and chest.
The statement continued, George “has bruises over his belly and ankle, as well as
small burst blood vessels in the skin around his right eye” and “multiple deep
scratches over his face, neck, chest, arms, and legs.” These same injuries were noted
in the diagnosis portion of the medical report. Finally, the statement included a
prognosis:
Prognosis of the current injuries is that [George] is expected to make a
full recovery. However, prognosis overall is poor if he is left in the
environment in which the injuries occurred, due to high risk of further
and more severe injuries.
30
The trial court also admitted ambulance records from George’s trip to the
emergency room, which Stary does not challenge on appeal. These records state that
George’s primary symptoms were pain and headache caused by “injury by bodily
force/Assault.” The records stated, “[Patient] std he got into an altercation w his
mother and she grabbed him and slammed face into ground and clawed him.
[Patient] has abrasion to r side of face and scratches on neck. [Patient] also std his
nose was bleeding . . . .”
The trial court also admitted several photographs depicting injuries to George
that Ethridge testified were caused by Stary. It also admitted the criminal indictment
against Stary for two counts of the third-degree felony offense of injury to a child,
specifically George. See TEX. PENAL CODE § 22.04(a)(3), (f). The court also admitted
temporary emergency orders issued in the criminal proceeding that prohibited Stary
from committing family violence. Contrary to Stary’s arguments on appeal, this
evidence of Stary’s family violence towards George corroborates Ethridge’s
testimony about the March 2020 incident.
Stary correctly asserts that Ethridge presented no evidence corroborating his
testimony about the other incidents of family violence. Nevertheless, the trial court
was the sole judge of Ethridge’s credibility and demeanor, and it could choose to
believe his testimony over Stary’s testimony denying that she physically harmed the
children. See Townsend, 569 S.W.3d at 807–08; Guimaraes, 562 S.W.3d at 549. We
31
note that the trial court interviewed the children in chambers. The only people
present for the interviews were the children, their attorney, and the judge. Although
there is no record of the children’s statements to the court, Ethridge specifically
testified at the hearing that he wanted the trial court to ask the children about these
various incidents. Presumably, the court was satisfied that the children’s in-
chambers statements supported Ethridge’s testimony and the court’s finding of
family violence.
Finally, a finding that family violence is likely to occur in the future can be
based on a single act of family violence. See TEX. FAM. CODE §§ 81.001, 85.001(a);
Maples v. Maples, 601 S.W.3d 23, 28 (Tex. App.—Tyler 2020, no pet.); Boyd, 425
S.W.3d at 432. “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.” Boyd, 425 S.W.3d at 432 (quoting In re Epperson, 213 S.W.3d
541, 544 (Tex. App.—Texarkana 2007, no pet.)). In this case, Ethridge testified
about numerous incidents during which Stary physically harmed each of the children
or threatened to place them in fear of imminent physical harm or bodily injury.
We conclude that this evidence is legally sufficient to support the protective
order. Ethridge offered testimony and documentary evidence of multiple instances
in which Stary had physically harmed or caused bodily injury to the children. See
TEX. FAM. CODE § 71.004(1). This evidence constitutes at least a scintilla of evidence
32
showing that family violence occurred and is likely to occur in the future. Therefore,
the evidence is legally sufficient to support this finding. See Lei Yang, 629 S.W.3d
at 670.
2. Factual Sufficiency
The evidence contrary to the finding of family violence consisted solely of
testimony by Stary and her character witness at the hearing. See Boyd, 425 S.W.3d
at 429 (stating that appellate court reviewing factual sufficiency of finding considers
evidence both in support of and contrary to the challenged finding). Stary denied
having ever harmed the children, and she gave excuses for the children’s injuries.
Regarding the March 2020 incident against George, Stary testified that George was
injured from fighting with the other children, not her. She said that George has a
temper, which had caused him to damage her house and hurt his two sisters. She said
that during the March 2020 incident, she had to use her body to “cage him” on the
ground so that he could not hurt his sisters. She said he was injured from his one of
his sister’s kicking him, pulling him across the carpet by his legs, and fighting with
him. She denied having accused Naomi of molesting George in the bathroom.
Stary also denied causing Cindy’s fractured wrist, testifying that Cindy hurt
herself when she was running through her house. She also denied injuring Cindy’s
ribs. She testified that Cindy was angry and kicking her because that she had taken
away a cell phone. She admitted that she “moved [her] arms back a little bit” and
33
pushed her elbow back towards Naomi and hit her, but she denied trying to hurt her.
She said that she barely touched Naomi, who did not cry or complain about the
incident until she went to Ethridge’s house.
Finally, regarding the Colorado road trip, Stary conceded that she stopped the
car and told Cindy to get out because she would not comply with Stary’s request to
get off her phone and read a book. But, she denied actually intending for Cindy to
get out of the car, and she said Cindy jumped out of the car when it stopped. She
denied that she drove off. The trial court, acting as factfinder, was the sole judge of
Stary’s credibility and could choose to believe Ethridge over her. See Townsend, 569
S.W.3d at 807–08; Guimaraes, 562 S.W.3d at 549. This testimony does not render
the evidence so weak or the finding so against the great weight and preponderance
of the evidence that it is clearly wrong or unjust. See Boyd, 425 S.W.3d at 429.
Stary also called a character witness who was a parent of a student of a child
that Stary taught in kindergarten. She testified generally about Stary’s character and
reputation for being a firm but gentle, nonviolent disciplinarian. Stary argues that
the trial court did not allow her witness to testify about Stary’s character or her
parenting of or relationship with her children, which she argues is relevant to the
issuance of the protective order. However, our review of the reporter’s record reveals
that the trial court generally allowed the witness to testify about Stary’s character.
The trial court only sustained objections to questions about how Stary interacted
34
with her students, whether she had a reputation as an “appropriate disciplinarian and
teacher,” whether the witness’s children had ever stayed at Stary’s home, whether
the witness knows Stary as a truthful person, and whether Ethridge attempted to
prevent Stary from teaching. None of this evidence is relevant to whether Stary
committed acts of family violence against her children. See TEX. FAM. CODE
§§ 81.001, 85.001(a); see also id. § 71.004(1). The witness was able to testify about
Stary’s character for disciplining her own children as well as interactions between
Stary and her children that the witness observed, which are relevant to the family
violence issue.
We conclude that the testimony of Stary and her witness does not render the
trial court’s finding of family violence so against the great weight and preponderance
of the evidence that it is clearly wrong and unjust. See Boyd, 425 S.W.3d at 429. The
only evidence contrary to the finding consisted of this testimony, which the trial
court was free to disbelieve in favor of believing Ethridge’s testimony. See
Guimaraes, 562 S.W.3d at 549.
We overrule Stary’s third issue.
Evidentiary Rulings
Finally, in her fourth issue, Stary argues that the trial court abused its
discretion by excluding evidence of Ethridge’s domestic violence against her and by
denying her request to make an offer of proof on this evidence.
35
We review a trial court’s evidentiary rulings for an abuse of discretion. U-
Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 132 (Tex. 2012); Loftin v. Loftin, 630
S.W.3d 369, 373 (Tex. App.—El Paso 2021, no pet.); In re A.M., 418 S.W.3d 830,
836 (Tex. App.—Dallas 2013, no pet.). A trial court abuses its discretion if it acts in
an arbitrary or unreasonable manner or without reference to guiding rules and
principles. Waldrip, 380 S.W.3d at 132; In re A.M., 418 S.W.3d at 836. We will
uphold a trial court’s evidentiary ruling if there is any legitimate basis for it. Owens-
Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998); In re A.M., 418
S.W.3d at 836.
During the hearing, Stary attempted to elicit testimony that Ethridge had a
history of domestic abuse. The trial court sustained Ethridge’s objections to the
relevancy of the evidence. When Stary requested to make an offer of proof, the trial
court refused her request because the evidence was irrelevant. On appeal, Stary
argues that evidence of Ethridge’s domestic abuse of her is relevant because “there
is a cycle of domestic violence and it spoke to the children’s state of mind and family
history.” She also argues, “If there was evidence that the children witnessed
[Ethridge] abusing [Stary] on multiple occasions, that history would absolutely be
relevant to the issues in this case.” We disagree.
The issues in this case are whether family violence has occurred and is likely
to occur in the future, and whether the acts of family violence constituted a felony
36
offense such that the protective order should be effective for more than two years.
See TEX. FAM. CODE §§ 81.001, 85.025(a-1)(1). The only pleading on file was
Ethridge’s application for a protective order alleging that Stary had committed acts
of family violence against the children, that family violence was likely to occur in
the future, and that the acts constituted a felony offense involving family violence.
There is no pleading alleging that Ethridge committed acts of family violence against
Stary or anyone else. Thus, the only issues in this case involved Stary’s actions
towards the children that may constitute family violence, not Ethridge’s actions.
Whether Ethridge physically abused Stary in front of the children does not
have any tendency to make it more or less probable that Stary physically injured the
children. See TEX. R. EVID. 401 (stating test for relevant evidence). Stary argues
broadly that Ethridge’s cycle of abuse is relevant to whether Stary physically abused
the children, but she does not explain why it is relevant or support her argument with
any legal authority. See TEX. R. APP. P. 38.1(i); Guimaraes, 562 S.W.3d at 538(“Failure to cite to appropriate legal authority or to provide substantive analysis of
the legal issues presented results in waiver of a complaint on appeal.”).
Stary also argues that the trial court erred by refusing her request to make an
offer of proof. An offer of proof is required to preserve error in a trial court’s ruling
excluding evidence unless the substance of the evidence was apparent from its
context. TEX. R. EVID. 103(a). An offer of proof consists of the proponent of the
37
evidence informing the trial court of the substance of the excluded evidence. Id. An
offer of proof allows the trial court to reconsider its ruling in light of the evidence in
the offer, and it allows a reviewing court to assess whether exclusion of the evidence
was harmful error. Fletcher v. Minn. Min. & Mfg. Co., 57 S.W.3d 602, 608 (Tex.
App.—Houston [1st Dist.] 2001, pet. denied).
An offer of proof is mandatory upon request. TEX. R. EVID. 103(c) (“The court
must allow a party to make an offer of proof as soon as practicable.” (emphasis
added)). The trial court’s failure to permit an offer of proof is reversible error upon
a showing of harm. Fletcher, 57 S.W.3d at 606–07; TEX. R. APP. P. 44.1 (stating that
no judgment may be reversed unless court of appeals concludes error probably
caused rendition of improper judgment or probably prevented proper presentation of
case on appeal). The trial court refused to allow Stary to submit an offer of proof
upon her request to do so, and it erred by doing so. See Fletcher, 57 S.W.3d at 606–
07; TEX. R. EVID. 103(c).
However, we cannot conclude that the trial court’s error in refusing the offer
of proof was harmful. See Fletcher, 57 S.W.3d at 606–07; TEX. R. APP. P. 44.1. The
substance of the testimony is apparent from its context: Stary’s allegation that
Ethridge had physically abused her in front of the children. See TEX. R. EVID. 103(a)
(stating that offer of proof is not required to preserve error in evidentiary ruling when
substance of evidence is apparent from context). We have already concluded above
38
that this evidence is not relevant to the issues involved in the protective order.
Because the evidence is not relevant, it lacks any tendency to make Stary’s acts of
family violence less probable. See TEX. R. EVID. 401(a). Therefore, any error in
excluding the evidence or refusing Stary’s request to make an offer of proof did not
probably cause the trial court to render an improper judgment. See Fletcher, 57
S.W.3d at 606–07; TEX. R. APP. P. 44.1 (stating that no judgment may be reversed
unless court of appeals concludes error probably caused rendition of improper
judgment or probably prevented proper presentation of case on appeal). We conclude
that any error in excluding the evidence was harmless.
We overrule Stary’s fourth issue.
Conclusion
We affirm the final protective order of the trial court.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Countiss and Farris.
Farris, J., dissenting.
39