SANDRA ELVA GONZALEZ v. ROBERT RANGEL--Appeal from 206th District Court of Hidalgo County

NUMBER 13-05-641-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
SANDRA ELVA GONZALEZ, Appellant,
v.

ROBERT RANGEL, Appellee.

 
On appeal from the 206th District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Hinojosa, Rodriguez, and Garza

Memorandum Opinion by Justice Rodriguez

 

This is an appeal from a protective order issued by the trial court against appellant, Sandra Elva Gonzalez. By four issues, appellant complains of the sufficiency of the evidence to support the trial court's findings of past and future family violence. See Tex. Fam. Code Ann. 71.004, 85.001 (Vernon 2002). We reverse and render.I. Jurisdiction

This Court agrees with the majority of the appellate courts considering the appealability of a protective order: a protective order is akin to a permanent injunction, and is, therefore, appealable if it disposes of all parties and issues. Striedel v. Striedel, 15 S.W.3d 163, 164-65 (Tex. App.-Corpus Christi 2000, no pet.); In re Cummings, 13 S.W.3d 472, 475 (Tex. App.-Corpus Christi 2000, no pet.); see Vongontard v. Tippit, 137 S.W.3d 109, 110 (Tex. App.-Houston [1st Dist.] 2004, no pet.); Ulmer v. Ulmer, 130 S.W.3d 294 (Tex. App.-Houston [14th Dist.] February 12, 2004, no pet.); B. C. v. Rhodes, 116 S.W.3d 878, 882 (Tex. App.-Austin 2003, no pet.); Kelt v. Kelt, 67 S.W.3d 364, 366 (Tex. App.-Waco 2001, no pet.); Cooke v. Cooke, 65 S.W.3d 785, 787-88 (Tex. App.-Dallas 2001, no pet.); Winsett v. Edgar, 22 S.W.3d 509, 510 (Tex. App.-Fort Worth 1999, no pet.); James v. Hubbard, 985 S.W.2d 516, 518 (Tex. App.-San Antonio 1998, no pet.). (1) This Court has jurisdiction to review this protective order because it disposes of all issues between the parties. In re Cummings, 13 S.W.3d at 474-75.

 

II. Background

Appellant and appellee, Robert Rangel, were involved in an intimate relationship for approximately two years. On May 19, 2005, appellee filed an application for a protective order. At the conclusion of a hearing on appellee's application, the trial court issued a protective order that was to continue in full force and effect until July 7, 2007. The order included the following relevant findings:

4. The Court finds that family violence has occurred and that family violence is likely to occur in the future;

5. The Court finds that Respondent SANDRA ELVA GONZALEZ has committed family violence by threatening ROBERT RANGEL'S life; and

6. The Court finds that Respondent SANDRA ELVA GONZALEZ has committed family violence by communicating with ROBERT RANGEL in a threatening or harassing manner.

III. Sufficiency of the Evidence

In her first and second issues, appellant contends the evidence is legally and factually insufficient to show that she engaged in an act of family violence as defined by section 71.004 of the Texas Family Code. See Tex. Fam. Code Ann. 71.004 (Vernon 2002). In her third and fourth issues, appellant contends the evidence is legally and factually insufficient to support a finding that family violence was likely to occur in the future as required by section 85.001 of the Texas Family Code. See Tex. Fam. Code Ann. 85.001 (Vernon 2002).

 

A. Standard of Review

Findings of fact in a case tried to the court, such as this one, have the same force and effect as jury findings. Catalina v. Blasdel, 881 S.W.2d 296, 297 (Tex. 1994). An appellate court reviews a trial court's findings of fact by the same standards that it uses to review the sufficiency of the evidence to support a jury's findings. Johnston v. McKinney Amer. Inc., 9 S.W.3d 271, 276 (Tex. App.-Houston [14th Dist.] 1999, pet. denied). We measure the sufficiency of the evidence of the title 4 family violence protective order by a legal and factual sufficiency standard of review. See In re Cummings, 13 S.W.3d at 476-77; Vongontard v. Tippit, 137 S.W.3d 109, 110 (Tex. App.-Houston [1st. Dist.] 2004, no pet.). (2)

In reviewing the legal sufficiency of the evidence, we view the evidence in the light favorable to the verdict, crediting favorable evidence if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex. 2005). In conducting a legal sufficiency review, we will sustain a legal sufficiency point if the record reveals the following: (a) the complete absence of a vital fact; (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; or (d) the evidence establishes conclusively the opposite of the vital fact. Id. at 810. The fact finder is the sole judge of the credibility of the witnesses and the weight to give their testimony. See id. at 819.

When reviewing factual insufficiency complaints, this Court considers, weighs, and examines all evidence which supports or undermines the finding. Golden Eagle Archery v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). The finding is set aside only if the evidence standing alone is too weak to support the finding or the finding is so against the overwhelming weight of the evidence as to be manifestly unjust and clearly wrong. Id.

B. Analysis

A trial court shall render a protective order if, after a hearing, it finds that family violence has occurred and is likely to occur in the future. Tex. Fam. Code Ann. 81.001, 85.001 (Vernon 2002). The Texas Family Code defines "family violence" as follows:

(1) 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; [or]

 

* * * * *

 

(3) dating violence, as that term is defined by Section 71.0021. (3)

 

Id. 71.004(1).

 

In her first issue, appellant contends that the evidence is legally insufficient to show that she committed family violence against appellee in the past. The trial court indicated that it found no evidence of an overt physical act of family violence, and thus, the question is whether the evidence shows that family violence in the form of threats occurred. See id.

The family code provides that only threats of "imminent physical harm, bodily injury, assault, or sexual assault" constitute family violence. See id. To support his assertion that family violence in the form of threats occurred, appellee testified regarding the following statements: (1) appellant "threatened" to ruin appellee's career; (2) appellant told appellee that she had shot her ex-husband; (3) appellant made multiple calls to appellee's cellular phone; and (4) appellant told appellee over the telephone while he was in Iraq that if he did not come home he would die.

The definition of family violence makes no reference to threats about one's career, only to threats of "imminent physical harm, bodily injury, assault, or sexual assault." Appellant "threatened" to ruin appellee's career. Accordingly, this statement does not support a finding of family violence.

As to appellee's allegation that appellant told him she shot her ex-husband, appellant argues this testimony is legally insufficient to constitute a "threat" absent evidence of the context in which the statement was made. See Selvog v. State, 895 S.W.2d 879, 881 (Tex. App.-Texarkana 1995, pet. ref'd) (discussing non-verbal factors that would indicate threat of serious bodily injury); see also Dacquisto v. State, 721 S.W.2d 603, 605 (Tex. App.-Amarillo 1986, pet. ref'd) (finding reasonable fear of serious bodily injury when victim, a young single woman living alone, was thrown from bed at night by stranger, threatened and had mouth taped). Appellant argues that appellee did not testify about appellant's tone of voice, about her physical posturing, or about any other non-verbal cues that could demonstrate an inference of threat. Moreover, appellee neither testified that appellant actually said she would shoot him like she shot her ex-husband, nor that he understood her to mean that she would shoot him. Nothing in either party's testimony indicates appellant possessed a weapon at the time she made the alleged statement or that she had ready access to a weapon. To constitute a "threat" under section 71.004, appellee must have been in fear of imminent bodily harm or injury. See Tex. Fam. Code Ann. 71.004(1) (Vernon 2002). Nothing in appellee's testimony confirms that he was placed in fear of imminent harm as a result of appellant making such statement and thus, the statement does not support a finding of family violence. See id.

With regard to appellee's assertion that appellant called him on his cellular phone up to seven times a day during the thirty days prior to the date he filed his protective order, appellant argues that appellee provided no testimony about any actual threat and did not testify that the content of the calls placed him in fear of imminent bodily harm. Appellant argues that, absent any threats to do bodily harm to appellee, any calls she may have made to him do not constitute family violence. We agree. During the hearing on appellee's application for protective order, appellee admitted into evidence his telephone records which also established that, during this same time period, appellee initiated calls to or returned calls from appellant. We cannot conclude that appellant's calls to appellee in this case support a family violence finding. See id.

With respect to appellee's allegation that appellant told him over the phone while he was in Iraq that if he did not come home he would die, appellant asserts that there was no evidence that the alleged statement actually constituted a "threat" and that appellee could not reasonably have been in imminent fear of bodily injury or assault by appellant as a result of that alleged statement. Iraq is a war zone, and it is common knowledge that appellee's life was in danger while stationed there. Appellee did not testify that appellant made a direct threat to harm him while he was in Iraq or that he would die if he did come home from Iraq, but merely that if he did not return from Iraq, he would die. Because appellant was not in Iraq at the time the alleged statement was made, any belief by appellee that appellant herself would be able to cause him imminent bodily harm would not be reasonable. See Robertson v. State, 175 S.W.3d 359, 362 (Tex. App.-Houston [1st Dist.] 2004, pet. ref'd) (construing "'imminent' to refer to a present threat, not a future threat of bodily injury or death"). Furthermore, appellee proffered no testimony that appellant, working through a third party in Iraq or by some other means, would cause his death. The distance between the parties and appellee's failure to present evidence regarding the context in which the statement was made is strong evidence that no imminent threat existed. Therefore, this statement does not support a finding of family violence.

Having reviewed the evidence in the light favorable to the verdict, we conclude that the evidence offered to prove family violence is no more than a mere scintilla. See Keller, 168 S.W.3d at 807, 810. We conclude, therefore, that the evidence is legally insufficient. Appellant's first issue is sustained.

Because we have concluded that the evidence is legally insufficient to satisfy the required finding that family violence occurred in the past, we need not address appellant's second issue regarding factual sufficiency or her third and fourth issues concerning the second prong of the analysis, that family violence is likely to occur in the future. See Tex. R. App. P. 47.1; Tex. Fam. Code. Ann. 85.001 (Vernon 2002).

IV. Conclusion

Accordingly, we reverse the trial court's protective order and render judgment that appellee's request for a protective order is denied.

 

NELDA V. RODRIGUEZ

Justice

 

Memorandum Opinion delivered and

filed this 17th day of August, 2006.

1. We do not address herein the applicability of this general rule to divorce proceedings. See, e.g., Keifer v. Keifer, 132 S.W.3d 601, 602 (Tex. App.-Fort Worth 2004, no pet.); In re K.S.L.-C., 109 S.W.3d 577, 579 (Tex. App.-Tyler 2003, no pet.); Bilyeu v. Bilyeu, 86 S.W.3d 278, 282 (Tex. App.-Austin 2002, no pet.).

2. In Striedel v. Striedel, 15 S.W.3d 163, 166 (Tex. App.-Corpus Christi 2000, pet. denied), we concluded that the trial court abused its discretion in not allowing appellant to present evidence at the hearing on the protective order. See id. We did not reach the issue regarding sufficiency of the evidence in Striedel.

3. "Family violence," as used in the trial court's fact findings, includes "dating violence." See Tex. Fam. Code Ann. 71.004(3) (Vernon 2002). Section 71.0021 defines dating violence as "an act by an individual that is against another individual with whom that person has or has had a dating relationship [including a continuing relationship of a romantic or intimate nature] and that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the individual in fear of imminent physical harm, bodily injury, assault, or sexual assault . . . ." Id. at 71.0021(a), (b).