Miguel G. Reyes v. Amelia Reyes--Appeal from 407th Judicial District Court of Bexar County

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MEMORANDUM OPINION
No. 04-02-00758-CV
Miguel G. REYES,
Appellant
v.
Amelia REYES,
Appellee
From the 407th Judicial District Court, Bexar County, Texas
Trial Court No. 2002-CI-13474
Honorable Andy Mireles, Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

Sitting: Alma L. L pez, Chief Justice

Karen Angelini, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: October 1, 2003

AFFIRMED

This is an appeal from a protective order granted on the basis of a finding of family violence. We are asked to decide whether the trial court erred in not requiring a bond, and whether the evidence was sufficient to grant the protective order. We affirm.

Background

Miguel Reyes ("Miguel") and Amelia Reyes ("Amelia") were divorced in December 2000. Prior to the divorce, Amelia sought and obtained a protective order prohibiting Miguel from going near her or her residence, and prohibiting him from threatening her or damaging her property. The protective order expired on July 27, 2001. In September 2002, Amelia sought a second protective order claiming three specific instances where Miguel had damaged her property in 2002. After a hearing on October 3, 2002, the trial court issued a protective order with a finding of family violence.

Discussion

As a threshold issue, Miguel claims the protective order is void because it lacks a bond or good cause for waiver of a bond as required for a permanent injunction. See Tex. R. Civ. P. 684. In support of his argument, Miguel cites James v. Hubbard, 985 S.W.2d 516, 518 (Tex. App.--San Antonio 1998, no pet.), where this court held a protective order is a "permanent injunction" and is a final, appealable judgment. Contrary to Miguel's position, this court did not hold that a protective order designed to prevent family violence requires provisions for a bond or a waiver thereof. Id. In fact, Title IV of the Texas Family Code governing protective orders and family violence is a unique statutory scheme. Martinez v. Martinez, 52 S.W.3d 429, 432 (Tex. App.--Fort Worth 2001, pet. denied). It specifically prohibits any fee, cost, charge, or expense being assessed against an applicant for a protective order. See Tex. Fam. Code Ann. 81.002 (Vernon 2002). Additionally, Miguel's reliance on Rule 684 of the Texas Rules of Civil Procedure requiring the posting of a bond when an applicant seeks a temporary injunction or temporary restraining order is also misplaced. Because this case involves a protective order necessitated by family violence, we are guided by the provisions under Title IV of the Texas Family Code. We overrule Miguel's first issue.

In his second issue, Miguel argues there was "no evidence" of violence presented at trial to support the issuance of the protective order. Specifically, Miguel claims the evidence falls short of being family violence because the only evidence presented related to claims of property damage and not claims of physical injury to Amelia. Miguel's "no evidence" contention is resolved by disregarding all evidence contrary to the finding of family violence to determine if there is any evidence remaining which would support the finding. See Minyard Food Stores, Inc. v. Goodman, 80 S.W.3d 573, 577 (Tex. 2002) (stating no evidence standard of review). If so, the judgment must be upheld; if not, a conclusion contrary to the finding is required as a matter of law. McGalliard v. Kuhlmann, 722 S.W.2d 694, 696-97 (Tex. 1986). Our standard of review is the same in both jury and bench trials. Pe a v. Garza, 61 S.W.3d 529, 532 (Tex. App.--San Antonio 2001, no pet.).

At trial, the State presented Amelia as a witness. She testified that she had a previous protective order against Miguel and he had violated it on six occasions, had been arrested on four occasions for assaulting her, and was currently serving a probated felony sentence for assault which he had violated by contacting her. She further testified that in the six months prior to the hearing, Miguel had vandalized her automobile and fired a weapon in the vicinity of her home, striking her automobile twice. Finally, she testified that she was terrified of him. Although there was contradictory testimony from Miguel and his girlfriend, the trial court evidently believed Amelia. We recognize that an experienced judge is able to observe the witness's behavior and demeanor, and is afforded considerable discretion. See McGalliard, 722 S.W.2d at 697. We further recognize the definition of family violence includes not only intended physical harm but also ". . . a threat that reasonably places the member in fear of imminent physical harm . . . ." Tex. Fam. Code Ann. 71.004(1) (Vernon 2002). The record contains sufficient evidence to support the trial court's finding of family violence. Therefore, we overrule Miguel's second issue.

Conclusion

We affirm the trial court's judgment.

Phylis J. Speedlin, Justice

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