Patrick Siegert v. Kathy Flannery--Appeal from 57th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-03-00487-CV
Patrick SIEGERT,
Appellant
v.
Kathy FLANNERY,
Appellee
From the 57th Judicial District Court, Bexar County, Texas
Trial Court No. 2003-CI-04559
Honorable Karen Pozza, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Alma L. L pez, Chief Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: August 4, 2004

AFFIRMED

Appellant Patrick Siegert (Siegert) appeals the trial court's grant of a protective order against him. Siegert and appellee Kathy Flannery (Flannery) were divorced on December 30, 2002. On March 23, 2003, the Bexar County District Attorney's Office filed an application for a protective order on behalf of Flannery, alleging that Siegert had committed "an act or acts of family violence." Following a hearing, the trial court issued the protective order. Siegert now appeals this order in three issues.

Because the issues in this appeal involve the application of well-settled principles of law, we affirm the trial court's judgment in this memorandum opinion under Tex. R. App. P. 47.1 for the following reasons:

1. In his second and third issues, Siegert claims the evidence presented at the hearing was both legally and factually insufficient to support the trial court's decision granting the protective order against him. In a bench trial, we review the findings for legal and factual sufficiency of the evidence by the same standards used in reviewing the evidence supporting a jury's verdict. Pe a v. Garza, 61 S.W.3d 529, 532 (Tex. App.--San Antonio 2001, no pet.); Tucker v. Tucker, 908 S.W.2d 530, 532 (Tex. App.--San Antonio 1995, writ denied). In considering legal sufficiency, we view the evidence in a light that tends to support the disputed findings and disregard all evidence and inferences to the contrary. Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 782 (Tex.2001). If more than a scintilla of evidence exists, we will uphold the judgment of the trial court. Id. In a review of factual sufficiency, we consider and weigh all of the evidence and set aside the judgment only if the evidence is so weak or contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

In order to issue a protective order under the Family Code, the trial court must find that family violence has occurred and will likely occur again. Tex. Fam. Code Ann. 85.001 (Vernon 2002). The Family Code defines family violence as "an act by a member of a family or household against another member of the family or household 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 2002); Ulmer v. Ulmer, 130 S.W.3d 294, 300 (Tex. App.--Houston [14th Dist.] 2004, no pet.). Thus, if the trial court finds that acts of physical violence or assault have occurred and are likely to occur in the future, the court may issue a protective order. Under the Texas Penal Code, an individual commits assault when he "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." Tex. Penal Code Ann. 22.01(a)(3)(Vernon 2003).

At the hearing on the State's petition for the protective order, Flannery presented evidence of both pre-divorce violence and post-divorce harassment and intimidation. Prior to the divorce, Flannery claimed Siegert cornered her in bathrooms or closets several times, that she feared him, and that he was drunk and verbally abusive. She also recounted two situations in which Siegert pulled her around the house and threw some of her belongings on the front lawn, the abuse escalating to a point where she felt she had to leave their house in order to be safe. Following the divorce in December of 2002, Flannery claims the police had to warn Siegert to leave her alone per the mutual permanent injunction included in their divorce decree. Siegert did not follow the injunction's terms, often calling Flannery "5 to 15 [times] a day" to ask why they divorced and why they were not together, claiming he was "remaining celibate" for her and often becoming angry and leaving "raging" messages when she refused to answer the phone. Flannery testified that Siegert continually touched her, that he couldn't "keep his hands off" of her when he is around her. He also moved into a house down the street from Flannery and began to stop by her house unexpectedly, making her afraid to leave her house for fear he would begin harassing her. Flannery also described an incident when she was leaving her house with a friend and Siegert pulled up, exited his car, and ran at them. The two women retreated into the house and locked the door, refusing to answer. Both were afraid he might harm them.

According to Flannery, Siegert also maintained a garage door opener to her house, attempting to enter in the middle of the night more than once. In addition, he harassed her at work, leaving highlighted church sermons on her desk with "crazy" notes regarding her behavior and how it caused the demise of their relationship and threatening to send a defamatory letter and nude picture of Flannery to her Bible study group. Flannery reported Siegert's behavior to the police and he was sent a letter from the District Attorney's office, asking him to stop contacting her, but he has not.

Siegert also testified, claiming that the post-divorce contact between the couple was mutual and that he had never meant to threaten Flannery with his attentions. He testified that Flannery was mentally unstable and that her behavior toward him was very hurtful. A neighbor of the couple also testified, stating that he did not know Siegert to be a violent man.

Even assuming that we affirm Siegert's first issue and find all evidence of pre-divorce

family violence to have been wrongfully admitted, the trial court did not err in finding the State's evidence legally and factually sufficient to support the issuance of a protective order. Siegert's actions could have been found to be threatening and to have reasonably placed Flannery in fear of imminent physical harm, bodily injury, or assault. See Tex. Fam. Code Ann. 71.01(b)(2)(A). In addition, Siegert has failed to heed past warnings and requests from Flannery, the police, and the district attorney's office to stop contacting his ex-wife. Because there is more than a scintilla of evidence to support the trial court's findings and because the trial court's decision is not so against the great weight and preponderance of the evidence as to be manifestly unjust, we overrule Siegert's second and third issues. Because these issues are dispositive of the case, we do not need to fully address Siegert's first issue.

The judgment of the trial court is affirmed.

Paul W. Green, Justice

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