Russell Thomas Boyd v. Christina Michelle Palmore

Opinion issued September

29, 2011.

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-10-00515-CV

———————————

RUSSELL THOMAS BOYD , Appellant

V.

CHRISTINA MICHELLE PALMORE, Appellee

On Appeal from the 280th District

Court

Harris County, Texas

Trial Court Case No. 2010-11113

OPINION

This

is an appeal from a protective order granted by the trial court against

appellant, Russell Thomas Boyd. In a

single issue, Boyd challenges the legal and factual sufficiency of the evidence

to support the grant of the protective order.

We affirm.

BACKGROUND

Appellee , Christina Palmore , had

a daughter named Tessa with Boyd. In

December 2009, after their relationship ended, Palmore

and Boyd agreed to the entry of an order that established visitation and

possession for Tessa.

In

late February 2010, Palmore filed her first amended

application for a protective order against Boyd. [1] A week later, the court issued a temporary ex

parte protective order against Boyd. Two

weeks after that, the trial court held an oral hearing on the application. At the hearing, Palmore

testified that she was afraid of Boyd, that his “threats ha[d] become

increasingly worse,” that he had been “verbally abusive” to her, and that she

felt like he was stalking her. Palmore then recounted several particular incidents

involving Boyd that caused her to fear for her safety.

She

testified that in October 2009 (the “October 2009 incident”), Boyd followed her

to her mother’s office in Travis County, got out of his car, blocked her with

his body so she could not leave, and ended up jumping onto the hood of her

car. Palmore

stated that she feared for her life during this incident and reported it to the

police. She affirmed, however, that Boyd

was also delivering medication for Tessa at the time and that this was the only

incident in which Boyd had ever done “anything remotely physical” to her.

Palmore further testified that Boyd hired a private

investigator named Jerry, who had been following her since October 2009. Although she had never seen Jerry, Boyd had

sent her text messages that were intended for Jerry. Included among these were bizarre messages

apparently discussing automobile tracking devices and video of Tessa taken

inside of Palmore’s parents’ home. Palmore also stated

that Boyd had told her there were hidden cameras in her house. As a result of these communications, Palmore felt like she was “being watched.”

Palmore also recounted an incident from January 2010 in

which Boyd faked his own suicide (the “January 2010 incident”). Pretending to be an individual named Alicia, Boyd sent Palmore a series

of bizarre messages, including the following:

I’m

starting to really worry about [Boyd].

Tried the key but he’s got the top lock [of his

apartment door] locked. Please tell me

what’s going on. This man loves you more

than anything. Please tell me if you’ve

heard from him.

You

really are a cold heartless bitch.

Was on the phone with

sheriff. They’re on their way here. Neighbor heard a gunshot an hour ago.

Sheriff is here.

What the hell did you do to him to make him do this?

Shot his self [sic] in the

head. I hope you’re really happy now.

They said he’s holding a picture of him and a little

girl and a red head.

Hope you’re happy now. You won’t have to worry about him anymore.

That man loved you more than anything and all you’ve

ever done is hurt him. Now you can’t

anymore.

EMS says he’s got a pulse and they’re working on him.

At some

point during this incident, Palmore called the number

from which she was receiving the messages and discovered that they were being

sent from Boyd’s work phone. Toward the

end of the exchange, Boyd apparently conceded his identity, telling Palmore that he wanted “a chance to sit down and talk to

[her] about everything.” He also

apologized for the fake text messages, telling Palmore

that it was “the only way [he knew] to get [her] to talk to [him].”

Finally, Palmore also testified that Boyd threatened to commit

suicide again in mid-February 2010 and told her he had been admitted to a

mental hospital.

Boyd

testified that he had admitted himself to a mental hospital for five days in

February 2010 in order to get help for his depression. He claimed to have been released with no

restrictions and to be on medication. Boyd also maintained that an individual named

Lisa Strummond —not he—had sent the text messages

during the January 2010 incident.

Finally, Boyd admitted to having hired a friend as a private

investigator to follow Palmore between October 8 and

November 11, 2009. He stated, however,

that the friend was no longer authorized to do so.

Two

individuals testified on Boyd’s behalf.

John Eshelman , a longtime friend, testified

that he did not feel Boyd would hurt himself and had never seen him hurt Palmore or Tessa.

Boyd’s sister, Kimberly White, concurred and stated that, in her view,

Boyd was a nonviolent person who had a loving relationship with his

daughter. She noted that Palmore had never informed her of any violent acts

committed by Boyd.

At the

conclusion of the hearing, the trial court granted Palmore’s

motion for a protective order. In its

order, the court specifically found that Boyd had committed family violence and

that family violence was likely to occur in the future. Boyd appeals the grant of this order.

LEGAL AND FACTUAL SUFFICIENCY

In

his sole issue, Boyd claims that the acts which were proven as the basis for

the protective order do not qualify as "family violence" and thus

that the trial court’s finding that family violence has occurred in the past

and is likely to occur in the future is not supported by legally or factually

sufficient evidence.

Standards of Review

When the

trial court acts as a fact-finder, we review its findings under the legal and

factual sufficiency standards. In re Doe , 19 S.W.3d 249,

253 (Tex. 2000); Vongontard v. Tippit ,

137 S.W.3d 109, 112 (Tex. App.—Houston [1st Dist.] 2004, no pet.). When a party who does not have the burden of

proof at trial challenges the legal sufficiency of the evidence, 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 fact-finder could not. City of

Keller v. Wilson , 168 S.W.3d 802, 827 (Tex.

2005); City of Houston v. Hildebrandt ,

265 S.W.3d 22, 27 (Tex. App.—Houston

[1st Dist.] 2008, pet. denied) (citing Assoc.

Indem . Corp. v. CAT Contracting, Inc. , 964 S.W.2d 276 , 285 – 86

(Tex. 1998) ). “If there is any

evidence of probative force to support the finding, i.e., more than a mere

scintilla, we will overrule the issue.” Hildebrandt , 265 S.W.3d at 27 (citing Haggar Clothing Co. v. Hernandez , 164 S.W.3d

386, 388 (Tex. 2005)).

In

reviewing a factual sufficiency challenge , we examine the entire record and

consider and weigh all the evidence, both in support of, and contrary to, the

challenged finding. See Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996);

Vongontard , 137 S.W.3d at 112 .

Having considered and weighed all the evidence, we should set aside the

verdict only if the evidence is so weak, or the finding is so against the great

weight and preponderance of the evidence, that it is clearly wrong and

unjust. Cain v. Bain , 709 S.W.2d 175, 176 (Tex.

1986). We cannot merely

substitute our opinion for that of the trier of fact

and determine that we would reach a different conclusion. Hollander v. Capon , 853 S.W.2d 723, 726 (Tex. App.—Houston [1st

Dist.] 1993, writ denied).

Family Code Provisions

Concerning Protective Orders

A court

shall render a protective order if the court finds that family violence (1) has

occurred and (2) is likely to occur in the future. Tex.

Fam. Code Ann.

§§ 81.001, 85.001 (Vernon 2008). “Family violence” is defined, in pertinent

part, as

[A]n 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.

Tex. Fam. Code Ann. § 71.004(1) (Vernon

2008) (emphasis added).

“Family” is defined to include individuals who are parents of the same

child. Tex.

Fam. Code Ann. § 71.003 (Vernon

2008).

Given

the remedial nature of Title IV of the Texas Family Code (of which the forgoing

sections are a part) , courts should broadly construe

its provisions so as to effectuate its humanitarian and preventative

purposes. See, e.g. United Fire & Cas .

Co. v. Boring & Tunneling Co. of Am. , 321 S.W.3d 24, 28 (Tex. App.—Houston [1st Dist.]

2010, pet. denied).

Analysis

A. Evidence of Past Family

Violence

Boyd

first contends that the evidence is legally and factually insufficient to show

that he committed family violence in the past.

Although Boyd does not separate his legal and factual sufficiency

arguments, we will do so for purposes of clarity. See Vongontard , 137 S.W.3d at 113 .

1. Legal Sufficiency

The evidence, viewed in

the light most favorable to the trial court’s finding, shows that in October

2009, Boyd followed Palmore to her mother’s office,

blocked her car, and jumped on her hood.

Palmore’s own testimony shows that these

actions caused her to fear for her life and call the police. The October 2009 incident, Palmore’s call to the police, and her testimony about her

fear is legally sufficient evidence that Boyd committed “an act . . . that

[was] a threat that reasonably placed [ Palmore ] in

fear of imminent physical harm, bodily injury, [or] assault,” thereby

satisfying the definition of “family violence.”

See Tex. Fam. Code Ann. § 71.004(1).

We reject Boyd’s arguments,

which we consider in turn. First, he

argues that the evidence is legally insufficient to show family violence

because he never touched Palmore during the October

2009 incident and there was no evidence that he ever committed any act that was

intended to result in physical harm, bodily injury, assault, or sexual assault

to Palmore . Boyd

further points out that although Palmore claimed that

he threatened her, she provided no evidence of any words rising to the level of a threat that reasonably placed her in

fear of imminent harm. We disagree,

however, because the act of blocking Palmore’s car

with his body and jumping on its hood constituted, in itself, a threat

satisfying the second part of the definition of “family violence,” even though

no actual physical harm resulted. See Bedinghaus v.

Adams , No. 2-08-096-CV, 2009 WL 279388 , at *3 (Tex. App.—Fort Worth Feb. 5,

2009, no pet.) ( mem . op.)

(pointing out that because of the disjunctive “or” in the definition of “family

violence,” “ a threat without an actual act of violence” is sufficient); Clements v. Haskovec , 251

S.W.3d 79, 85 (Tex. App.—Corpus Christi 2008, no pet.) ( holding

that appellant’s act of raising his fist and making other threats was

sufficient to constitute “family violence” even though he never actually struck

his daughter or wife).

Boyd’s

second argument is based on Palmore’s allegation,

contained in her first amended application for a protective order (filed on

February 25, 2010), that family violence had occurred during the previous 30

days. Since the October 2009 incident occurred outside of

this 30-day period, Boyd argues that it is legally insufficient to support the

trial court’s finding of family violence. However, no statutory provision prohibits a

court from basing a finding of family violence on an act occurring more than 30

days before the filing of an application for a protective order. The only reference to a 30-day period in

Title IV of the Family Code occurs in a section dealing with the findings

necessary for a court to render a temporary ex parte order excluding a party

from a residence. See Tex. Fam.

Code Ann.

§ 83.006(b) (Vernon 2008).

It is true that Palmore’s first amended

application contained two applications—an application for a temporary ex parte

order (including an order excluding Boyd from her residence) and an application

for a standard protective order to be rendered after full notice and hearing.

However, the language referring

to the 30-day period appears only in the section of the application containing Palmore’s request to exclude Boyd from her residence as

part of the temporary ex parte order.

Because Boyd does not challenge the court’s grant of the temporary ex

parte order, we reject this argument.

In a third argument, Boyd contends that evidence of the

October 2009 incident is legally insufficient because Palmore

did not mention it among the acts allegedly constituting family violence in her

amended application or in her attached affidavit. However, an application for a standard

protective order need only contain (1) the name and county of residence of the

applicant, (2) the name and county of residence of the individual alleged to

have committed family violence, (3) the relationship between the applicant and

the individual, and (4) a request for a protective order. Tex. Fam. Code Ann. § 82.004 (Vernon

2008). Palmore’s amended application undoubtedly met these

requirements. We therefore hold that evidence

of the October 2009 incident is legally sufficient to support a finding of past

family violence. [2]

2. Factual Sufficiency

In his brief, Boyd makes several points concerning the

October 2009 incident. He notes that he

never touched Palmore during the incident and did not

damage her car. He highlights White’s

testimony that Palmore never mentioned any fear of

Boyd or any past violent acts committed by him.

He also points out that the incident occurred months before Palmore applied for a protective order, and that the two

successfully negotiated agreed visitation of Tessa after the incident occurred. The record also shows that Boyd was at Palmore’s mother’s office, at least in part, to deliver

medicine to Tessa.

However,

the trier of fact is the sole judge of the

credibility of the witnesses and the weight to be given their testimony. GTE Mobilnet of S . Tex. Ltd. P’Ship

v. Pascouet , 61 S.W.3d 599 , 615 –16 (Tex. App.—Houston [14th Dist.] 2001,

pet. denied). Thus, the trial court was

free to place greater weight on Palmore’s testimony and

conclude that Boyd’s actions during the October 2009 incident placed her in

reasonable and imminent fear for her safety.

The evidence supporting the trial court’s finding that family violence

had occurred is not so weak as to be clearly wrong or manifestly unjust and is

therefore factually sufficient.

B. Evidence of Likelihood of Future

Family Violence

Boyd next contends that there is

legally and factually insufficient evidence to show that he was likely to

commit an act of family violence in the future.

1. Legal Sufficiency

Boyd

argues that the evidence is legally insufficient because it fails to show that

he engaged in a pattern of threats of violence or a pattern of violent

acts. He contends that the October 2009

incident was an isolated event and that none of the other acts complained of by

Palmore rose to the level of family violence.

The

statutory language of Title IV does not require that a likelihood finding be

based on more than one act of family violence.

See Tex. Fam. Code Ann.

§§ 81.001, 85.001.

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.”

In re Epperson , 213 S.W.3d

541, 544 (Tex. App. —Texarkana 2007, no pet.); accord Banargent v. Brent , No. 14-05-00574-CV, 2006 WL

462268 , at *1–2 (Tex. App.—Houston [14th Dist.] Feb. 28,

2006, no pet.) ( mem . op.). Under this principle, Boyd’s commission of

an act of family violence during the October 2009 incident would permit a

finding that he was likely to engage in future family violence.

Boyd points out that there was a

pattern of family violence in both Teel

v. Shifflett , 309 S.W.3d 597, 604 (Tex.

App.—Houston [14th Dist.] 2010, denied), and Clements , 251 S.W.3d at 87 – 88. But, while those cases can be

construed as holding that a pattern of family violence is sufficient to support

a likelihood finding, neither case held that such a pattern was a necessary

prerequisite to such a finding.

Viewing

it in the light most favorable to the trial court’s finding, as we must, the

evidence shows that, in the months following the October 2009 incident, Boyd

continued to harass Palmore via text messaging. Combined with the violence that occurred

during the October 2009 incident itself, this provides more than a scintilla of

evidence that, if not

enjoined, Boyd would commit acts of family violence against her in the

future. Thus, the trial court’s finding

is supported by legally sufficient evidence.

2. Factual Sufficiency

Boyd highlights several pieces of evidence that

tend to challenge the trial court’s finding that future family violence was

likely to occur. These include evidence

that Boyd (1) never physically hurt Palmore , (2)

worked out an agreed visitation schedule for Tessa in December 2009, (3)

voluntarily sought treatment for depression in February 2010, was put on

medication, and was released without restrictions, (4) lived several hours away

from Palmore and saw her only when they exchanged

Tessa, and (5) did not contact Palmore at all for

several weeks before the hearing.

Against each of these stand the following

considerations. First, although Boyd

never physically harmed Palmore , evidence of the

October 2009 incident in which he committed family violence was uncontroverted. [3] Second, while Palmore

affirmed that she worked out a visitation schedule for Tessa with Boyd, she

added that “I wouldn’t say that I felt safe doing it.” Third, the only proof that Boyd received

psychological treatment was provided by his own testimony and that of White,

his sister. When asked about that claim,

Palmore expressed skepticism, stating that “he says

he did [check himself into a mental hospital] but I don’t know for sure.” Fourth, the October 2009 incident occurred in

Travis County—a substantial distance from Harris County, where Boyd was living

at the time. It also occurred at a time

when Boyd was ostensibly seeking to deliver Tessa’s medicine to Palmore . Fifth, the

fact that Boyd did not contact Palmore in the

immediate lead-up to the hearing may have been due to the effectiveness of the

protective order proceedings (including the trial court’s grant of the

temporary ex parte protective order) rather than to a voluntary subsidence on

his part. Palmore’s

statement that she was still afraid of Boyd certainly provided support for this

view.

After

evaluating all of the evidence, judging the credibility of the witnesses, and

weighing the testimony, the trial court could have reasonably concluded that

Boyd was likely to commit another act of family violence. Because the evidence supporting the trial court’s finding is

not so weak as to be clearly wrong or manifestly unjust, we overrule Boyd’s

factual sufficiency challenge. See Bedinghaus , 2009 WL 279388 , at *3 – 4 (evidence was factually sufficient to support

trial court’s finding that future violence was likely to occur — despite defendant’s testimony that his actions

were taken out of context and that he never threatened nor intended to cause

complainant physical harm — as there

was testimony that defendant sent excessive and sometimes threatening text

messages to victim, hired a private investigator to follow her, and sent the

private investigator’s reports to the victim).

CONCLUSION

We affirm

the protective order of the trial court.

Sherry

Radack

Chief

Justice

Panel consists of Chief Justice Radack and

Justices Sharp and Brown.

Justice Sharp, dissenting.

[1] This

application included a request for both a temporary ex parte protective order

and a standard protective order following full notice and hearing.

[2]

Two

other points bear mentioning as well.

First, Palmore filed her first amended

application on February 25 and the temporary ex parte protection order was not

rendered until March 3. Section 82.0085

is therefore inapplicable. See Tex.

Fam. Code Ann. § 82.0085 (Vernon 2008) (requiring that an application

for a protective order filed before the expiration of a previously rendered

protective order contain “a description of the threatened harm that reasonably

places the applicant in fear of imminent physical harm, bodily injury, assault,

or sexual assault”). Second, Boyd argues

that since he was not served with Palmore’s original

application, any acts allegedly constituting family violence mentioned therein,

but not mentioned in the first amended application or introduced at the

hearing, should not be considered in support of the protective order. Because our holding does not rely on any such

evidence, we need not reach this issue.

[3] Boyd references Clements , which stated that “ there is case law which

suggests that [a single, isolated act of violence in the past] is insufficient

for a finding that future violence is likely to occur.” 251 S.W.3d at 87–88. Besides being dicta, this assertion

was ultimately based on the fact that the

“past is prologue” principle derives from parental termination and child custody

cases. Those cases, in turn, require a

heightened standard of review. See Tex.

Fam. Code § 161.001 (Vernon 2008) (in suit to terminate parent-child

relationship, each finding required for termination must be based on “clear and

convincing evidence”); see also In re C.H. , 89 S.W.3d 17 , 25 – 26 (Tex.

2002) (affirming heightened factual-sufficiency review in such cases). Factual sufficiency review of family violence

protective orders, however, does not entail such a heightened standard. Thus, an episode of family violence, coupled

with continued harassment, permits an inference that family violence is likely

to occur in the future.