Russell Thomas Boyd v. Christina Michelle Palmore--Appeal from 280th District Court of Harris County
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Opinion issued September 29, 2011.
In The
Court of Appeals
For The
First District of Texas
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NO. 01-10-00515-CV
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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.
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
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.
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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.
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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
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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).
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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
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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
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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
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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
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
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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
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.
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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.
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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
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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
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.
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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.
15
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Sharp and Brown.
Justice Sharp, dissenting.
16
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