Joseph Claude Henry v. Megan Ann Whitlock-Henry ( 2023 )

Affirmed and Memorandum Opinion filed March 28, 2023.
In The
Fourteenth Court of Appeals
NO. 14-21-00550-CV
JOSEPH CLAUDE HENRY, Appellant
V.
MEGAN ANN WHITLOCK-HENRY, Appellee
On Appeal from the 280th District Court
Harris County, Texas
Trial Court Cause No. 2021-52332
MEMORANDUM OPINION
This is an appeal from a thirty-five year family-violence protective order
entered in favor of appellee, Megan Ann Whitlock-Henry. In the amended protective
order, the trial court found that appellant Joseph Claude Henry committed family
violence, was likely to do so in the future, and committed an act constituting a felony
offense. Joseph challenges the amended protective order and contends (1) there is
legally and factually insufficient evidence to support entry of the amended protective
order, (2) there is neither statutory authority nor sufficient evidence to support the
duration of the amended protective order, and (3) the trial court did not have the
authority to include numerous provisions in the amended protective order that
infringe upon Joseph’s rights. For the reasons set forth below, we affirm.
Background
Joseph and Megan married in 2017. The parties did not have any children
together, but both parties had children prior to the marriage.1 According to Megan,
Joseph’s behavior became increasingly violent and erratic after they were married.
On August 20, 2021, Megan applied for a protective order under chapter 85
of the Family Code. In her affidavit in support of her request for a protective order,
Megan described the preceding events as follows:
The following are examples of Joseph’s destructive behavior: On
September 9, 2020, Joseph began punching holes in the wall of our
master bedroom. At the time, Joseph was experiencing a fit of blinding
anger and I could not reach him with words . . . . On April 29, 2021,
Joseph punched holes in the wall of my step-daughter, Claire’s
bedroom. Joseph has also punched holes in the walls of our TV room
and sawed down the door in the TV room. During his fits of rage,
Joseph has even thrown chairs and personal objects, and burned cash
money on the gas stove. . . . On August 17, 2021, I had a disagreement
with Joseph which escalated into an assault on my life. During our car
ride home from dinner, Joseph became enraged and lunged at me. My
daughter was in the car during this incident and witnessed Joseph
strangle me. He had a firm grip on my neck and began banging my head
against the car window as I struggled to break free.
That same day, the trial court signed a temporary protective order and show
cause order directing Joseph to appear via Zoom to show cause why the court should
1
Joseph had two adult children, Calvin Claude Henry and Claire Elizabeth Henry. During
Joseph and Megan’s marriage, Calvin resided in Georgia, and Claire resided with them at the
marital home during college breaks. Megan had one minor child, L.G.K., who resided with the
parties in the marital home.
2
not issue a protective order. During the evidentiary hearing, Megan and Joseph both
appeared with counsel. Megan, Keely Suitor, Gary Whitlock, and Joseph testified at
the two-day protective order hearing.
Megan’s Testimony. Megan testified about Joseph’s steadily escalating
episodes of extreme anger, destruction of property, and threatening behavior. She
attested that Joseph’s behavior concerned and frightened her. She described his
behavior as “fits of rage” that began with Joseph raging at an “adamant object or
situation” and then turning his anger towards her. She attested that when Joseph was
extremely angry, he would call her names such as “a horrific wife,” “the worst
person that he’s ever married,” a “lived-hard,” “a snowflake,” and “a retard liberal.”
She avowed that during these “episodes,” Joseph “work[ed] himself into such
a rage” that he punched walls in the marital home. She testified about three separate
occasions where Joseph punched holes in the walls of the marital home. On one
occasion, he punched the light switch with such force that he bloodied his knuckles
and splattered blood on the wall. On another occasion, he sawed down the door to
their TV room because he was angry that the door would not close properly. In
addition to testimony about property destruction, Megan described an occasion
where Joseph left a bruise on her. She stated that Joseph was trying to move past her
and pushed her out of his way and into a wall, which resulted in a bruise on her arm.
Megan provided substantial testimony about the physical assault that occurred
on August 17, 2021 and was the catalyst for her requesting a protective order. She
testified that she and Joseph went to dinner with Claude, Claire, and L.G.K. An
“argument ensued at the end of dinner,” and they “continued arguing outside the
restaurant to the point of getting into [her] car.” She asserted that Joseph was in the
driver’s seat, and her daughter, L.G.K., was sitting behind her. Megan testified that
Joseph “was having a fit of rage and . . . lunged across the car . . . grabbed [her] neck
3
with both of his hands while he was screaming . . . and just squeezed [her] neck
while he was pushing [her] against the window of the car.” She attested that she
could not breathe while Joseph’s hands were around her neck. She stated her neck
was “quite swollen . . . [and] it had red marks.” Megan further attested that this act
of violence occurred in front of L.G.K., who subsequently expressed that she was
fearful of Joseph.
In the early morning hours following the physical assault, Megan testified that
Joseph sent her concerning text messages. The trial court admitted text messages
where Joseph sent Megan the following:
You are the most evil, lying, manipulative bitch I’ve ever known. Of
all I’ve done for you and given you. You were done with me months
ago but not adult enough to admit it. You have treated me like dirt. I
have no feelings for you whatsoever. It makes me sad that [L.G.K.] will
never have as loving a man in her life because you don’t deserve one.
You are a piece of gutter shit. You are not my wife. You are a thief. An
amoral, hateful devil.
And Claire is a much better person than you could dream of being. If
you ever attack her again I will kill you. Yes, megs shitty lawyers, that
is a threat. Attack my kids again, your life ends.
She testified that she believed Joseph wanted to kill her or L.G.K based on the
text messages. She also asserted that after the text messages, Joseph also emailed
her. The trial court admitted the email, and in relevant part, the email stated:
I apologize for all my mean and vicious words and actions, all of which
came from a childish and most often drunken place. . . . Many actions
and words are horrible, reprehensible and indefensible. Some of those
are unforgiveable. . . . Now that you’ve left me, I have nothing more to
fear. I am living in my deepest pain. I am facing my abandonment
directly and proximately. I’m staring into the abyss. I have no more to
lose. . . . I have been weak in managing my depression and anger, which
is rooted in fear and not strength. I have allowed my anger to manifest
in physical violence, which is not defensible in any circumstance. I have
made you feel unsafe, when your safety is my responsibility. . . . I have
4
been drunk too much and too often. I have been arrogant in my
drinking. I did not encourage you when you were working on sobriety.
. . . I am making an appointment to go back to a doctor to reevaluate
depression medications. I need to find one that balances right and works
for me, however long that takes. I will be working on my anger and
irritability. . . . If AA or another program is appropriate, I will follow
that road.
Keely’s Testimony. Keely, Megan’s co-worker, testified that on the night of
the physical assault, she went to Megan’s house after receiving a text message from
another party. She stated that when she arrived, she met with Megan, who was very
upset and crying. Keely asked Megan what was wrong, and Megan “informed [her]
that she had been assaulted by [Joseph]” and that “he had placed his hands around
her neck and strangled her.” Keely stated that she did not see bruising or marks but
noticed that Megan’s neck “looked puffy.” Keely asserted that Megan was extremely
upset and said that she had twelve hours to vacate the residence.
Keely testified that she called the Bellaire Police Department to report the
physical assault and that officers responded within ten to fifteen minutes. Keely also
testified that the officers were present for over an hour and spoke with both Megan
and L.G.K. Keely remained at the residence with Megan because Megan “was very
concerned about some continuity for [L.G.K.], about getting [L.G.K.] to school and
trying not to upset [L.G.K.’s] routine for the first day of school.”
Keely stated that the following morning, Joseph returned to the house. Keely
overheard a conversation where Megan told Joseph that she wanted to work out an
amicable way to end their marriage and Joseph expressed that it was not his desire.
Keely observed that Joseph was “unhappy” with the thought of the marriage ending
and overheard him tell Megan that it was her fault. Keely described Joseph’s tone as
“somewhat belligerent” and that “he was forceful about stating . . . that it was
entirely [Megan’s] fault.”
5
Gary’s Testimony. Gary, Megan’s father, testified that on August 17, 2021,
he was at his Michigan home with his wife, Pam. He testified that he missed a call
from Megan and called her back on FaceTime.2 Megan was “extremely distraught,”
and he could see her “really crying.” Gary testified that Megan told him that Joseph
“slammed [her] head against the window and choked [her] . . . [and] tried to kill
[her].” While Gary was on the phone with Megan, Pam was on the phone with
Joseph.
Gary stated that Pam had Joseph on speaker phone, and Gary heard Joseph
“screaming and cursing” that Gary should “come get [his] fucking psychotic
daughter now or [Joseph would] kill her . . . . She’s a devil and she’s evil.” Gary
asked Joseph directly if Joseph physically touched Megan and Joseph admitted that
he “did this time but it was the first time.” Gary asserted that his goal was to calm
Joseph as much as possible. He later testified that based on the physical assault, he
believed Megan’s life was in danger, and he retained a private security firm to protect
her and L.G.K.
Gary also received an email from Joseph apologizing for his actions on the
night of the physical assault. The email stated that “on Tuesday . . . I did horrible
things that are not defensible regardless of the circumstance” and “I hope someday
in the future to have an opportunity to apologize to [L.G.K.], who is the real innocent
victim in all of this.”
Joseph’s Testimony. Joseph provided minimal testimony. He stated that (1)
he was a licensed attorney; (2) there was a warrant out for his arrest; (3) as of the
date of the hearing, he had not submitted himself to law enforcement to cure the
warrant; and (4) he was at the marital home the day he was served with the protective
2
FaceTime is a video chat application developed for Apple products.
6
order.
When questioned on direct examination about the physical assault occurring
on August 17, 2021, Joseph invoked his fifth amendment right against self-
incrimination. Similarly, when questioned about the property destruction at the
marital home and the bruise on Megan’s arm, Joseph invoked his fifth amendment
right. When questioned about his daughter Claire’s permanent residence and why
she was at the marital home after the protective order was served, Joseph also
invoked his fifth amendment right. There was not a cross-examination.
At the conclusion of the evidentiary hearing, the trial court signed an amended
protective order. Joseph subsequently requested findings of fact and conclusions of
law and moved for a new trial, contending that the parties were now divorced,3 did
not have any contact, and the evidence was legally and factually insufficient to
support the trial court’s protective order. The trial court issued findings of fact and
conclusions of law, and the motion for new trial was denied by operation of law.
Joseph filed a timely notice of appeal.
Discussion
In three issues, Joseph challenges (1) the legal and factual sufficiency of the
evidence in support of the trial court’s amended protective order; (2) the sufficiency
of the evidence in support of the duration of the amended protective order; and (3)
several conditions ordered by the trial court in the amended protective order.
I. Sufficiency Challenge
3
On August 20, 2021, the date that Megan applied for a protective order, she also filed her
divorce petition and requested a temporary restraining order. The temporary restraining order was
signed on August 25, 2021 and later set for a hearing on September 13, 2021. On September 13,
2021, the parties entered in a mediated settlement agreement, and the final decree of divorce was
later signed on October 29, 2021.
7
In his first issue, Joseph contends that there is legally and factually insufficient
evidence to support the entry of the final protective order. Joseph does not challenge
the trial court’s finding that family violence occurred; rather, he argues the evidence
is legally and factually insufficient to support the trial court’s finding that family
violence is likely to occur in the future. See Tex. Fam. Code § 85.001(a).
A. Legal Sufficiency
Joseph posits that “one incident” of family violence in the past does not
support the conclusion that another incident of family violence is likely to occur in
the future. Joseph instead suggests that evidence of future family violence
“involve[s] evidence of ongoing harassment, threats, or—at a minimum—some
degree of coercive or threatening contact between the parties.” We disagree because
such a requirement is contrary to the legislative intent of the protective order statute.
See id. at §§ 81.001, 85.001; see also Rodriguez v. Doe, 614 S.W.3d 380, 386 (Tex.
App.—Houston [14th Dist.] 2020, no pet.).
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. See 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
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.” Id. § 71.003. Given the remedial nature of the Family Code’s
protective order provisions, courts broadly construe its provisions to effectuate its
“humanitarian and preventative purposes.” Rodriguez, 614 S.W.3d at 385 (quoting
8
Boyd v. Palmore, 425 S.W.3d 425, 430 (Tex. App.—Houston [1st Dist.] 2011, no
pet.)). The general rule is that the duration of a Family Code protective order may
not exceed two years, although the court may issue a protective order for a longer
period if the court finds that the respondent “committed an act constituting a felony
offense involving family violence against the applicant or a member of the
applicant’s family or household . . . .” Tex. Fam. Code § 85.025(a), (a-1).
When the trial court acts as a factfinder, we generally review its findings under
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.).
When both legal and factual sufficiency challenges are raised on appeal, we
must first examine the legal sufficiency of the evidence. City of Houston v. Cotton,
171 S.W.3d 541, 546 (Tex. App.—Houston [14th Dist.] 2005, pet. denied). 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 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.
9
Harrison, 70 S.W.3d 778, 782–83 (Tex. 2001).
The trial court heard testimony from Megan, Keely, and Gary regarding
Joseph’s abusive behavior towards Megan. The trial court also heard testimony that
on August 17, 2021, Joseph’s steadily escalating episodes of extreme anger,
destruction of property, and threatening behavior culminated in a physical assault on
Megan in the presence of her minor child. The trial court admitted a text message
where Joseph threatened to kill Megan, as well as an email where Joseph admitted
to substance abuse and mental health problems. The trial court also admitted, without
objection, the charging instrument from the Bellaire Police Department indicating
that Joseph was charged with “Assault of Family Member – Impeding Breathing”—
a third degree felony.
The statutory language of the Family Code does not require that a likelihood
finding be based on more than one act of family violence. See Tex. Fam. Code §§
81.001, 85.001(a); see also In re Lee, 411 S.W.3d 445, 451 (Tex. 2013) (statute’s
plain language is “surest guide” to legislative intent). On the contrary, courts have
recognized that “[o]ftentimes, 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.)). Under this principle, an act of
family violence during one incident would permit a finding that the actor was likely
to engage in future family violence. Id.; see Carson v. Carson, No. 07-16-00311-
CV, 2017 WL 4341456, at *3 (Tex. App.—Amarillo Sept. 29, 2017, no pet.) (mem.
op.); Collier v. State, No. 12-13-00142-CV, 2013 WL 4769267, at *3 (Tex. App.—
Tyler Sept. 4, 2013, no pet.) (mem. op.).4
4
Although in some cases there is a pattern of family violence, such as in both Teel v.
Shifflett, 309 S.W.3d 597 (Tex. App.—Houston [14th Dist.] 2010, pet. denied), and Clements v.
10
This legally sufficient evidence supports a finding that Joseph committed
family violence against Megan when he choked her and impeded her ability to
breathe. See Tex. Fam. Code § 71.004(1). On this record, there is more than a
scintilla of evidence that family violence is likely to occur in the future. See City of
Keller, 168 S.W.3d at 810. Thus, Joseph’s commission of an act of family violence
on August 17, 2021, along with his threat to kill Megan in a text message permits a
finding that he was likely to engage in future family violence. See Boyd, 425 S.W.3d
at 432; see also Martin v. Martin, 545 S.W.3d 162, 168 (Tex. App.—El Paso 2017,
no pet.) (holding commission of act of family violence on March 21 would permit
finding that appellant was likely to engage in future family violence; applicant filed
for protective order on March 22).
Accordingly, we conclude that the evidence is legally sufficient to support a
finding that Joseph is likely to commit family violence in the future. See Tex. Fam.
Code § 85.001(a).
B. Factual Sufficiency
Joseph also argues that “one incident” of family violence when the parties
were married and lived together is not factually sufficient to support a likelihood of
future family violence when he does not have any interest in continued contact with
Megan, the parties are now divorced, and they share no children. We disagree.
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
Haskovec, 251 S.W.3d 79 (Tex. App.—Corpus Christi 2008, no pet.), these cases have not held
that such a pattern of family violence is a necessary prerequisite to a likelihood finding. Boyd, 425
S.W.3d at 432.
11
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 afforded to 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).
Contrary to Joseph’s assertion that there was only “one incident” of family
violence, the record before us contains other occasions of family violence. Megan
testified that Joseph (1) threatened and intimidated her during his “fits of rage,” (2)
bruised her arm when he pushed past her, (3) damaged the marital home by punching
holes in the walls and sawing down a door, and (4) threatened to kill her. Gary also
testified that Joseph told him to “come get [his] fucking psychotic daughter now or
I’ll kill her.” Gary believed that Megan and L.G.K.’s safety was in jeopardy and
retained a private security firm to protect them. We also note that Joseph himself
admitted in email correspondence that he (1) was weak in managing his depression
and anger, (2) had been drunk too much and too often, and (3) made an appointment
to reevaluate his depression medications to find the balance that worked for him.
Considering the testimony at the evidentiary hearing and the trial court’s role
in weighing the credibility of the witnesses, the trial court could reasonably conclude
that Joseph was likely to commit another act of family violence. See Boyd, 425
S.W.3d at 433. Therefore, the family violence likelihood finding is not so contrary
to the overwhelming weight and preponderance of the evidence that it is clearly
wrong and manifestly unjust. See Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996).
Thus, we conclude that the evidence is factually sufficient to support a finding that
Joseph is likely to commit family violence in the future. See Tex. Fam. Code §
12
85.001(a).
Having concluded that the evidence is legally and factually sufficient to
support a finding that family violence is likely to occur in the future, we overrule
Joseph’s first issue.
II. Protective Order for a Period that Exceeds Two Years
In Joseph’s second issue, he challenges the trial court’s rendition of a thirty-
five year protective order because there is insufficient evidence that Megan requires
any protection from Joseph. Specifically, Joseph argues that imposing a thirty-five
year protective order is “only punitive, which does not align with the word or spirit
of the law which is designed to ‘protect the applicant and prevent future violence.’”
We disagree because Joseph exhibited a pattern of escalating behavior and threats
and committed an act constituting a felony offense involving family violence against
Megan.
Section 85.025 of the Family Code provides that the duration of a protective
order is two years unless the court finds that the person who is the subject of the
protective order:
(1) committed an act constituting a felony offense involving family
violence against the applicant or a member of the applicant’s family or
household, regardless of whether the person has been charged with or
convicted of the offense;
(2) caused serious bodily injury to the applicant or a member of the
applicant’s family or household; or
(3) was the subject of two or more previous protective orders rendered:
(A) to protect the person on whose behalf the current protective
order is sought; and
(B) after a finding by the court that the subject of the protective
order:
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(i) has committed family violence; and
(ii) is likely to commit family violence in the future.
Tex. Fam. Code § 85.025(a-1).
Section 85.001(d) provides that if a court renders a protective order for a
period of more than two years, the court must include in the order a finding described
by Section 85.025(a-1). Id. § 85.001(d); see also Yang v. Cao, 629 S.W.3d 666, 669
(Tex. App.—Houston [1st Dist.] 2021, no pet.) (holding that finding in the judgment
is required for protective order exceeding two years even if the evidence could
support a longer duration of a protective order).
In the case before us, Megan requested the protective order be granted for a
term in excess of two years because Joseph committed an act constituting a felony
offense involving family violence. At the conclusion of the evidentiary hearing, the
trial court entered a thirty-five year protective order against Joseph that provides:
The Court finds that Applicant and Respondent are married but
separated. The Court finds that family violence has occurred and that
family violence is like to occur in the future. The Court finds that
Respondent, Joseph Claude Henry, has committed family violence. The
Court finds that the Respondent, Joseph Claude Henry, committed an
act constituting a felony offense involving family violence against the
applicant. The Court finds that the following protective orders are for
the safety and welfare and in the best interest of the protected person,
Megan Ann Whitlock-Henry, and are necessary for the prevention of
family violence . . . . The Court finds that Respondent, Joseph Claude
Henry, committed an action constituting family violence against Megan
Ann Whitlock-Henry, regardless of whether the person has been
charged with or convicted of the offense. IT IS THEREFORE
ORDERED that this order shall continue full force and effect until
September 1, 2056 or until further ORDER of this Court. IT IS
FURTHER ORDERED that Respondent, Joseph Claude Henry, is
permitted to seek further action in relation to this Final Protective
Order effective September 1, 2022.
14
The trial court also issued findings of fact and conclusions of law, including
the following:
Applicant and Respondent are married but separated. Family violence
has occurred. Family violence is likely to occur on the future.
Respondent has committed an act constituting a felony offense
involving family violence against the Applicant. Legally and factually
sufficient evidence, and inferences drawn from that evidence, supports
the finding that Respondent committed family violence in the past and
is likely to commit family violence in the future . . . . Pursuant to Tex.
Fam. Code § 85.011, a Protective Order is necessary for the safety and
welfare of the Applicant and because the Court has found that family
violence occurred in the past and is likely to occur in the future.
The record contains the following evidence to support the above finding. At
the evidentiary hearing, Megan testified that Joseph, while driving a car, strangled
her with both of his hands in front of her minor child. According to Megan, Joseph
lunged across the car with both hands while screaming. On another occasion, Joseph
threatened to kill her and gave her twelve hours to vacate the marital home. She also
testified that on three separate occasions, Joseph punched holes in the walls of the
marital home during his “fits of rage.”
Keely believed that Joseph physically assaulted Megan and reported this to
the Bellaire Police Department. After law enforcement left, Keely remained with
Megan at the marital home. The following morning, Keely overheard a conversation
where Megan told Joseph that she wanted to work out an amicable way to end their
marriage and Joseph expressed that it was not his desire. Keely observed that Joseph
was “unhappy with the thought of the marriage breaking up and that it was
[Megan’s] fault.”
Joseph admitted to Gary that Joseph physically assaulted Megan. Gary
believed Joseph’s threat on Megan’s life to be credible and retained a private security
15
firm to protect Megan and L.G.K. from Joseph.
In addition to the testimony, Megan offered, and the trial court admitted, an
unsolicited email Joseph sent to Megan a few days following the physical assault
where Joseph (1) apologized for his mean and vicious words and actions, which
often came from a drunken place, (2) acknowledged a substance abuse problem, and
(3) admitted that he had a mental health problem that likely required medication.
Megan also offered, and the trial court admitted, without objection from Joseph, a
copy of the criminal complaint charging Joseph with “Assault of Family Member –
Impeding Breathing.” See Tex. Penal Code §22.01(b).5
Under section 22.01(b), it is a third degree felony offense if a person impedes
the normal breathing or circulation of the blood of another by applying pressure to
the person’s throat or neck. Further, in the criminal complaint, Officer Nathanael
Rios with the Bellaire Police Department took both Megan’s and L.G.K.’s
statements. Officer Rios observed a red mark on Megan’s throat. He also observed
that when L.G.K. recounted the physical assault, she became “very emotional” and
“expressed fear toward [Joseph] and did not want to be in the same residence as
him.”
From this evidence, the trial court could have determined that family violence
occurred, was likely to occur in the future, and that Joseph committed an act
constituting a felony offense involving family violence. See Tex. Fam. Code §§
81.001, 85.001(b), 85.025(a-1); see also Tex. Penal Code § 22.01(b). Thus, there is
5
A person commits an offense if the person: (1) intentionally, knowingly, or recklessly
causes bodily injury to another, including the person’s spouse; (2) intentionally or knowingly
threatens another with imminent bodily injury, including the person’s spouse; or (3) intentionally
or knowingly causes physical contact with another when the person knows or should reasonably
believe that the other will regard the contact as offensive or provocative.
16
sufficient evidence that Joseph committed an act constituting a felony offense
involving family violence against the applicant, Megan. See City of Keller, 168
S.W.3d at 810. We conclude that the evidence is legally and factually sufficient to
support the protective order for a period that exceeds two years. See Tex. Fam. Code
§ 85.025(a-1).
Although we have concluded that a thirty-five year protective order is not
against the great weight and preponderance of the evidence on this record, we note
that a person subject to a protective order effective for longer than two years 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). The person must
wait one year after the trial court signs the protective order to seek review of it and
must wait another year to seek review again if the trial court denies the person’s first
motion for review. Id. § 85.025(b), (b-1). The person is 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).
Accordingly, we overrule Joseph’s second issue.
III. Conditions of the Protective Order
In his third issue, Joseph primarily challenges the conditions of the amended
protective order requiring him to: (1) make an appointment for a substance abuse
evaluation at The Council on Recovery and follow all treatment recommendations
promulgated by The Council on Recovery, (2) undergo a mental health evaluation
for explosive anger with a duly licensed mental health professional and follow all
recommendations of said mental health professional, (3) provide proof of
compliance from his treating mental health professional and/or substance abuse
provider, including urinalysis results regarding medication compliance, and (4) sign
17
a HIPAA authorization for the release of his (a) substance abuse evaluation, (b)
mental health evaluation, and (c) ongoing mental health treatment and substance
abuse treatment. Joseph argues that Megan did not plead, nor is there any evidence
to indicate that he has a substance abuse or mental health problem and requests that
we reverse the portions of the amended protective order that were previously stayed.6
In response, Megan argues that the trial court properly rendered the amended
protective order because the Family Code permits a trial court to enter orders that
are necessary or appropriate to prevent or reduce the likelihood of family violence.
We agree with Megan.
6
On October 20, 2021, Joseph filed a motion in this court requesting emergency relief.
Joseph sought a stay of the trial court’s oral order on October 5, 2021, to produce witnesses at a
hearing to be held on October 25, 2021, and a stay of certain provisions in the amended protective
order signed October 1, 2021. We previously granted the motion and issued a stay of the following
provisions until final decision by this court in the appeal or until further order of this court: (1)
Joseph “shall make an appointment for substance abuse evaluation at The Council on Recovery,
located at 303 Jackson Hill Street, Houston, Texas 77007” on or before September 17, 2021; (2)
Joseph “shall follow all treatment recommendations promulgated by The Council on Recovery”;
(3) Joseph “shall undergo a mental health evaluation for explosive anger with a duly licensed
mental health professional” on or before September 17, 2021; (4) Joseph “shall remain in treatment
which [sic] such mental health professional for his explosive anger and shall follow all
recommendations of said mental health professional; (5) Joseph “shall comply with all treatment,
whether inpatient or outpatient, as well as recommendations of the licensed mental health
professional [and] remain compliant with any medications as prescribed by his mental health
professional”; (6) Joseph shall “sign a HIPAA Authorization authorizing the release of his
substance abuse evaluation to” Megan’s attorney; (7) Joseph shall “execute a HIPAA
Authorization authorizing the release of his mental health evaluation to” Megan’s attorney; (8)
Joseph shall “file the results of his mental health evaluation with this Honorable Court within forty-
eight hours of issuance of the evaluation”; (9) Joseph shall “execute a HIPAA Authorization
authorizing the release of his ongoing mental health treatment and substance abuse treatment,
including urinalysis results regarding medication compliance to [Megan’s attorney] for so long as
this Final Protective Order is in effect”; (10) Joseph shall “provide proof of compliance via a letter
from his treating mental health professional and/or substance abuse provider to [Megan’s attorney]
every six months, beginning March 1, 2022, and on the dates March 1 and September 1 of each
and every year that this Final Protective Order is in effect”; (11) Joseph shall “provide with said
letter the results of his urinalysis testing to show compliance with any prescribed medications”;
and (12) Joseph shall sell or surrender to the Harris County Sheriff’s Office any and all firearms
or ammunition possessed by him no later than ten (10) days following execution of the final
protective order.
18
We review the prohibitions and awards entered in a protective order for an
abuse of discretion. See In re Doe, 19 S.W.3d at 253 (“The abuse of discretion
standard applies when a trial court has discretion either to grant or deny relief based
on its factual determinations.”); see also Dolgener v. Dolgener, 651 S.W.3d 242,
256 (Tex. App.—Houston [14th Dist.] Aug. 31, 2021, no pet.); see generally
Rodriguez, 614 S.W.3d at 385-86 (noting that Family Code section 85.022(b), which
also governs protective orders, gives the trial court discretion to prohibit certain
conduct).
A trial court abuses its discretion if it acts arbitrarily or unreasonably or
without reference to guiding rules or principles. Flowers v. Flowers, 407 S.W.3d
452, 457 (Tex. App.—Houston [14th Dist.] 2013, no pet.); see Worford v. Stamper,
801 S.W.2d 108, 109 (Tex. 1990) (per curiam). A trial court does not abuse its
discretion when some evidence reasonably supports its decision. Butnaru v. Ford
Motor Co., 84 S.W.3d 198, 211 (Tex. 2002).
To the extent that Joseph argues that the trial court abused its discretion in
granting relief that was not pleaded for, we note that “[e]ven without pleadings to
support these awards, unpleaded claims or defenses that are tried by express or
implied consent of the parties are treated as if they had been raised by the pleadings.”
See Yang, 629 S.W.3d at 674 (citing Roark v. Stallworth Oil and Gas, Inc., 813
S.W.2d 492, 495 (Tex. 1991)); accord Bednarz v. State, 176 S.W.2d 562, 563 (Tex.
1943); Watts v. St. Mary’s Hall, Inc., 662 S.W.2d 55, 58 (Tex. App.—San Antonio
1983, writ ref’d n.r.e.); see also Tex. R. Civ. P. 67. A party who allows an issue to
be tried by consent and who fails to raise the lack of a pleading before submission
of the case cannot later raise the pleading deficiency for the first time on appeal.
Roark, 813 S.W.2d at 495; see Tex. R. Civ. P. 67.
In the case before us, Joseph did not complain to the trial court that the
19
challenged provisions were not supported by Megan’s pleadings; therefore, Joseph
cannot raise the issue for the first time on appeal. We turn next to Joseph’s argument
that the trial court lacked authority to require him to (1) undergo substance abuse
and mental health evaluations and treatment, (2) provide proof of compliance from
his treating mental health professional and/or substance abuse provider, and (3)
execute HIPAA authorizations for the release of his mental health and substance
abuse evaluation and treatment.
A. Substance Abuse and Mental Health Evaluation
Joseph argues that there is no basis in law or evidence that he be ordered to
participate in substance abuse and mental health evaluations and treatment. Joseph
contends that “[n]o allegations or evidence indicate [he] has a ‘substance-abuse’
problem.” Likewise, Joseph posits that “the only reference to any ‘substance’ use
was Megan’s testimony that—on the night of the one alleged act of domestic
violence—Joseph, Megan, Calvin (Joseph’s son), and Claire (Joseph’s daughter)
drank some wine.” Joseph further argues that “no statute or evidence supports the
requirement that [he] ‘undergo a mental health evaluation.’” As discussed below,
these allegations are not supported by the record because Joseph, himself, put his
substance abuse and mental health at issue when he emailed Megan, and section
85.022 permits a trial court broad discretion in determining necessary and
appropriate acts to prevent or reduce the likelihood of family violence. See Tex. Fam.
Code § 85.022(a).
In support of his proposition that it is “reversable error for the trial court to
include provisions in a protective order that are not tailored to the fact of the case
and necessary to prevent or reduce the likelihood of family violence,” Joseph cites
In re M.G.M., 163 S.W.3d 191, 200-01 (Tex. App.—Beaumont 2005, no pet.). A
close examination of In re M.G.M., however, reveals that this authority supports the
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plain wording of section 85.022, which gives trial courts broad discretion to “order
the person found to have committed family violence to perform acts specified by the
court that the court determines are necessary or appropriate to prevent or reduce the
likelihood of family violence.” See Tex. Fam. Code § 85.022(a).
In re M.G.M. involved a temporary ex parte protective order issued in Texas
and a concurrent divorce and child custody proceeding in Michigan. 163 S.W.3d at
194. While the Texas trial court had temporary emergency jurisdiction under section
152.204(a) of the Family Code to issue an ex parte temporary protective order for
the protection of the applicant and the children, the temporary emergency
jurisdiction under section 152.204(a) to enter a temporary protective order was
limited in scope to provisions that would ensure the physical safety of applicant and
the children. Id. at 197, 199-200. The protective order at issue contained provisions
from both section 85.021 and section 85.022 and required the defendant to pay child
support and complete a battering intervention and prevention program, and
prohibited the defendant from “transferring, encumbering, or otherwise disposing of
property mutually owned or leased by the parties.” Id. at 197-98. The appellate court
found that it was error to include any conditions that were not reasonably related to
temporary emergency protection from family violence, i.e., conditions referring to
child support, a battering intervention and prevention program, and encumbering
mutually owned property. Id. at 199-200 (emphasis added).
The facts presented in In re M.G.M. are not analogous to the case before us
for multiple reasons. First, In re M.G.M. addressed temporary emergency protections
while Joseph challenges the rendition of a final protective order. Second, the trial
court’s amended final protective order falls within the ambit of section 85.022. See
Rodriguez, 614 S.W.3d at 385.
The trial court heard testimony that on the night of the physical assault, Joseph
21
was drinking. Megan offered, and the trial court admitted, the criminal complaint
where Megan told Officer Rios that Joseph was “highly intoxicated” after dinner.
Further, Megan offered, and the trial court admitted, an email sent from Joseph to
Megan acknowledging in part that Joseph had a substance abuse problem, i.e.,
alcohol, and a mental health problem, i.e., depression. As discussed above, the
email, in its relevant parts, stated that (1) “all of my mean and vicious words and
actions . . . came from a childish and most often drunken place,” (2) “I have been
weak in managing my depression and anger,” (3) “I have been drunk too much and
too often,” (4) I have been arrogant in my drinking,” (5) “I am making an
appointment to go back to a doctor to reevaluate depression medications,” and (6)
“[i]f AA or another program is appropriate, I will follow that road.”
Although section 85.022 does not specifically list participating in substance
abuse and mental health evaluations and treatment, there is no authority (and Joseph
cites no authority suggesting) that the provisions of section 85.022 are intended to
be an exhaustive list of remedies available to a trial court when issuing a protective
order that will effectively prevent family violence. See Rodriguez, 614 S.W.3d at
386. Such an interpretation is contrary to the permissive language in the statute and
falls short of the legislative intent of the statute. Id. Considering the testimony at the
evidentiary hearing and the trial court’s role in weighing the credibility of the
witnesses, we conclude that the trial court was within its discretion to order Joseph,
“the person found to have committed family violence, to perform acts specified by
the court that the court determines are necessary or appropriate to prevent or reduce
the likelihood of family violence.” Tex. Fam. Code § 85.022(a).
Accordingly, the trial court did not act arbitrarily or unreasonably or without
reference to guiding rules or principles in requiring that Joseph (1) make an
appointment for a substance abuse evaluation at The Council on Recovery and
22
follow all treatment recommendations promulgated by The Council on Recovery
and (2) undergo a mental health evaluation for explosive anger with a duly licensed
mental health professional. See Flowers, 407 S.W.3d at 457.
B. Proof of Compliance
Joseph also challenges the provisions of the amended protective order
requiring him to submit proof of compliance with “all treatment, whether inpatient
or outpatient,” as well as recommendations of the licensed mental health
professional and compliance with any medications prescribed by his mental health
professional, contending that there is no statutory authority. While Joseph posits that
he was required to provide proof of compliance with the mental health and substance
abuse evaluation and treatment for a thirty-five year period, the plain language of
the amended protective order limits proof of compliance to two years or further order
from the court.
As discussed above, the evidence is sufficient to support the trial court’s
family violence finding, and section 85.002 allows a trial court to order the person
who has committed family violence to perform certain acts necessary or appropriate
to prevent or reduce the likelihood of family violence. Tex. Fam. Code § 85.022(a);
see also Rodriguez, 614 S.W.3d at 385. Because the evidence was legally and
factually sufficient to support the trial court’s family violence finding, the evidence
was likewise sufficient to support the requirement that Joseph provide proof of
compliance from his treating mental health and/or substance abuse provider,
including the results of his urinalysis testing to show compliance with any prescribed
medications for a period of two years or until further order of the court.
C. HIPAA Authorization
Joseph contends that there is no statutory authority requiring HIPAA
23
authorizations for his medical records to opposing counsel. At the risk of being
repetitive, we emphasize that the permissive language of section 85.022 allows the
trial court to order a person found to have committed family violence to perform
certain acts the trial court determines “necessary or appropriate to prevent or reduce
the likelihood of family violence.” Tex. Fam. Code § 85.022.
“The legislative intent in passing Title IV was to ‘reduce the high incidence
of deaths and injuries sustained by law enforcement officers in handling family
disturbances and to aid law enforcement officers in protecting victims of family
violence from serious or fatal injuries.’” Jackson v. Jackson, No. 01-14-00952-CV,
2015 WL 8940117, at *4 (Tex. App.—Houston [1st Dist.] Dec. 15, 2015, no pet.)
(mem. op.) (quoting Act of April 19, 1979, 66th Leg., R.S., ch. 98, § 1, 1979 Tex.
Gen. Laws 182, 182 (repealed and reenacted 1997)). “The purpose of the statute is
to provide an expedited procedure for victims of domestic violence; the purpose is
not to correct past wrongs or establish liability but to give immediate protection to
the applicant.” Roper v. Jolliffe, 493 S.W.3d 624, 634 (Tex. App.—Dallas 2015, pet.
denied). The scope of family violence protective orders will vary considerably
depending on the circumstances. See Rodriguez, 614 S.W.3d at 385.
In the case before us, the trial court heard testimony that Joseph committed an
act of family violence after consuming alcohol. The trial court also admitted
evidence establishing that Joseph (1) had the propensity to drink “too much and too
often,” (2) lacked the ability to manage his “depression and anger,” and (3) needed
“to go back to a doctor to reevaluate depression medications.” Thus, it was within
the trial court’s discretion to require Joseph to execute HIPAA authorizations to
establish compliance with and track the progress of his ongoing substance abuse and
mental health treatment.
Accordingly, we overrule Joseph’s third issue.
24
Conclusion
Having overruled all of Joseph’s issues, we affirm the amended protective
order and lift our October 22, 2021, order staying the trial court’s amended protective
order.
/s/ Frances Bourliot
Justice
Panel consists of Justices Jewell, Bourliot, and Zimmerer.
25