Opinion
No. 08-20-00149-CV
03-11-2021
Cody Don BELL, Appellant, v. The STATE of Texas FOR the Protection of S.E.G., Appellee.
John K. Greenwood, for Appellee. Zachary Morris, for Appellant.
John K. Greenwood, for Appellee.
Zachary Morris, for Appellant.
Before Rodriguez, C.J., Palafox, and Alley, JJ.
OPINION
YVONNE T. RODRIGUEZ, Chief Justice
This is an appeal from a protective order granted under the Family Code by the County Court of Lampasas County, Texas.
BACKGROUND
On May 26, 2020, the State of Texas (the "State") requested a protective order under TEX.FAM.CODE ANN. § 82.002. The State sought this order against Cody Don Bell ("Bell") on behalf of S.E.G. Bell and S.E.G. had formerly dated and lived together. The complaint alleged that Bell had previously engaged in conduct constituting family violence and alleged the likelihood of future family violence. That same day, the trial court entered a Temporary Ex Parte Protective Order and Show Cause Order, setting the hearing for June 9, 2020.
The trial court held a hearing on June 9, 2020. No record of the hearing was apparently taken. The trial court completed a pre-printed "Protective Order" form and checked a box stating that "[f]amily violence has occurred and is likely to occur in the future." In addition, the trial court hand circled the clause, concerning future violence, on the form. The trial court ordered Appellant to refrain from committing acts of family violence against S.E.G. or members of her household, and likewise not to communicate with S.E.G. except through counsel. The protective order is effective until June 8, 2021. On June 16, 2020, Appellant requested findings of fact and conclusions of law. On June 16, 2020, Bell also filed his notice of appeal. On June 22, 2020, the clerk certified the record for appeal. However, the clerk's record filed in this appeal reveals no findings of fact or conclusions of law were ever filed. No reporter's record was filed.
Appellant argues the trial court erred in granting a Protective Order "without making a finding that family violence had occurred." First, he posits the review of a Protective Order is not moot. Second, he alleges the trial court failed to make a finding that family violence had occurred by relying on a document attached to his brief but not included in the underlying record before us. Appellant concludes the evidence is legally insufficient to support the Protective Order because the trial court did not find family violence had occurred. Exhibits Attached to Bell's Brief
Appellant attached what appears to be a June 26, 2020 file stamped copy of findings of fact and conclusions of law to his brief, however it is not included in the clerk's certified record to this Court. The appellate record consists of the clerk's record and, if necessary to the appeal, the reporter's record. TEX.R.APP.P. 34.1.
We note, "[a]n appendix is not a substitute for a clerk's record nor are citations to the appendix a substitute for citations to the record." Jackson v. Citibank (S.D.), N.A. , 345 S.W.3d 214, 214 (Tex.App.—Dallas 2011, no pet.) (quoting Willms v. Wilson , No. 05-08-01718-CV, 2009 WL 4283109, at *1 (Tex.App.—Dallas Dec. 2, 2009, no pet.)(mem. op.) ). Further, we may not consider documents in an appendix that are not in the appellate record. Deutsch v. Hoover, Bax & Slovacek, L.L.P. , 97 S.W.3d 179, 198–99 (Tex.App.—Houston [14th Dist.] 2002, no pet.) ; see also Quorum Int'l v. Tarrant Appraisal Dist. , 114 S.W.3d 568, 572 (Tex.App.—Fort Worth 2003, pet. denied) ("We cannot look outside the record in an effort to discover relevant facts omitted by the parties; rather, we are bound to determine this case on the record as filed."); Warriner v. Warriner , 394 S.W.3d 240, 254 (Tex.App.—El Paso 2012, no pet.) (holding that documents attached to a brief as an exhibit or an appendix, but not appearing in the record, cannot be considered on appellate review); Fox v. Wardy , 234 S.W.3d 30, 33 (Tex.App.—El Paso 2007, pet. dism'd w.o.j.) (refusing to consider appellant's affidavit attached to brief because it was not part of the appellate record); WorldPeace v. Commission for Lawyer Discipline , 183 S.W.3d 451, 465 n.23 (Tex.App.—Houston [14th Dist.] 2005, pet. denied) ("we cannot consider documents attached as appendices to briefs and must consider a case based solely upon the record filed"); Siefkas v. Siefkas , 902 S.W.2d 72, 74 (Tex.App.—El Paso 1995, no writ) (holding that appellate court may not consider matters outside appellate record); Fuentes v. Union de Pasteurizadores de Juarez Sociedad Anonima de Capital Variable , 527 S.W.3d 492, 502 (Tex.App.—El Paso 2017, no pet.) ; Amarillo v. R.R. Commn. of Texas , 511 S.W.3d 787, 793 (Tex.App.—El Paso 2016, no pet.) ; Robb v. Horizon Communities Improvement Association, Inc. , 417 S.W.3d 585, 589 (Tex.App.—El Paso 2013, no pet.).
The attachment of documents as exhibits or appendices to briefs is not a formal inclusion in the record on appeal and, therefore, the documents cannot be considered. Fox , 234 S.W.3d at 33 ; Nguyen v. Intertex, Inc. , 93 S.W.3d 288, 293 (Tex.App.—Houston [14th Dist.] 2002, no pet.) ; Perry v. Kroger Stores, Store No. 119 , 741 S.W.2d 533, 534 (Tex.App.—Dallas 1987, no writ) (op. on reh'g). Accordingly, we will not consider any documents attached to Bell's brief which are not part of the appellate record.
Sufficiency of the Evidence
Apparently, no reporter's record was taken for the Protective Order hearing on June 9, 2020. It is well-established law that "without a complete record, it is impossible to review all the evidence presented to the jury or to apply the appropriate evidentiary sufficiency standards in review of the case." In re Estate of Arrendell , 213 S.W.3d 496, 499 (Tex.App.—Texarkana 2006, no pet.). When a reporter's record is not filed, as in this case, we must assume that the missing evidence supports the trial court's ruling. Bryant v. United Shortline Inc. Assurance Services, N.A. , 972 S.W.2d 26, 31 (Tex. 1998) ; Bloyed v. General Motors Corp. , 881 S.W.2d 422, 430 (Tex. App.—Texarkana 1994), aff'd , 916 S.W.2d 949 (Tex. 1996). If there is no reporter's record or findings of fact, we must presume the evidence was sufficient. Guthrie v. National Homes Corp. , 394 S.W.2d 494, 495 (Tex. 1965) ; Smith v Grace , 919 S.W.2d 673, 677-78 (Tex.App.—Dallas 1996, writ denied). Further, an Appellant cannot show insufficiency of the evidence to support a finding without a reporter's record. Panizo v Young Men's Christian Ass'n of Greater Houston Area , 938 S.W.2d 163, 165 (Tex.App.—Houston [1st Dist.] 1996, no writ) ; Fisher v Evans , 853 S.W.2d 839, 840-41 (Tex.App.—Waco 1993, writ denied).
CONCLUSION
Accordingly, we hold that Appellant has waived his sole issue on appeal and therefore overrule his issue and affirm the trial court's judgment.
Alley, J., Concurring
CONCURRING OPINION
JEFF ALLEY, Justice
I concur in the Court's disposition of this case but write separately to emphasize that there are statutory prerequisites for issuing protective orders in Texas that cannot be lightly overlooked.
Appellant's primary issue on appeal is that the trial court erred in granting a protective order when there was not a finding that family violence had occurred in the past. And indeed, issuance of a protective order depends on two distinct and required findings: the existence of past family violence and the likelihood of future family violence. This conclusion flows inexorably from the statutory language. In a section titled "Required Findings and Orders" the trial court is required to make a finding as to both aspects of family violence. TEX.FAM.CODE ANN. § 85.001(a) ("At the close of a hearing on an application for a protective order, the court shall find whether: (1) family violence has occurred; and (2) family violence is likely to occur in the future."). Subsection (b) of the same provides that the trial court shall render a protective order "[i]f the court finds that family violence has occurred and that family violence is likely to occur in the future[.]" Id. at § 85.001(b). And Subsection (c) repeats the same requirement for a finding of both past family violence and the likelihood of future violence. Id. at § 85.001(c) (A protective order compelling a person to complete certain programs "shall include a finding that the first applicant has committed family violence and is likely to commit family violence in the future."). Similarly, Section 81.001 also states: "A court shall render a protective order as provided by Section 85.001(b) if the court finds that family violence has occurred and is likely to occur in the future." TEX.FAM.CODE ANN. § 81.001 ; see also S. N. v. Texas Department of Family & Protective Services , No. 03-18-00539-CV, 2019 WL 471069, at *4 (Tex.App.—Austin Feb. 7, 2019, no pet.) (mem. op.) ; Onkst v. Morgan , No. 03-18-00367-CV, 2019 WL 4281913, at *1 (Tex.App.—Austin Sept. 11, 2019, pet. denied) (mem. op.).
The statute plainly places the two requirements (past family violence and the requirement of future family violence) in the conjunctive. In other words, "Both findings are required before a court may issue a protective order under the family code." Colvin v. Colvin , No. 03-03-00234-CV, 2004 WL 852266, at *6 (Tex.App.—Austin Apr. 22, 2004, no pet.) (mem. op.).
As the form order, reproduced in the majority opinion reflects, the trial court checked a box stating that "[f]amily violence has occurred and is likely to occur in the future" but the trial court hand circled only the latter clause (concerning future violence) on the form. Appellant asked for findings of fact and conclusions of law. Those findings were not included in the clerk's record on appeal, and no motion to supplement the clerk's record was ever filed with this Court. The majority opinion alludes to an attachment to Appellant's brief, which purports to be the findings of fact and conclusions of law, but the case law in this district, as well as the Third Court of Appeals are replete with cases disallowing supplementations of the record by merely attaching documents to an appellate brief.
The State's responsive brief on appeal does not raise any of the record infirmities advanced by the majority, nor challenge that the trial court did in fact make findings of fact and conclusions of law that omitted a finding of past family violence. Instead, the State's only response on appeal is that because these sections of the Family Code are remedial, we should construe them broadly to effectuate their remedial and humanitarian purposes. While that is certainly true, a liberal construction does not include re-writing the statute to eliminate one of the elements of proof required to obtain a protective order.