Opinion
01-20-00043-CV
06-03-2021
RICARDO PRUNEDA, Appellant v. KARINA GRANADOS, Appellee
On Appeal from the 280th District Court Harris County, Texas Trial Court Case No. 2019-83155
Panel consists of Justices Goodman, Hightower, and Rivas-Molloy.
MEMORANDUM OPINION
VERONICA RIVAS-MOLLOY JUSTICE
This is an appeal from a protective order granted by the trial court against appellant Ricardo Pruneda ("Father") involving his three children: J.P., N.P., and R.P. In six issues, Father complains that (1) the evidence is legally and factually insufficient to support issuance of the protective order with regard to J.P; (2) the evidence is legally and factually insufficient to support issuance of the protective order with regard to N.P. and R.P.; (3) the protective order improperly exceeds the two-year time limitation under Texas Family Code Section 85.025; (4) certain provisions of the protective order are inconsistent and render the order void; (5) the trial court conducted an evidentiary hearing on issues previously decided by another court of concurrent jurisdiction thus depriving the trial court of jurisdiction and barring the order under principles of res judicata; and (6) Karina Granados ("Mother") engaged in impermissible forum-shopping by seeking the same relief in two different courts.
We reverse in part and affirm in part.
Background
Father and Mother are the parents of ten-year-old J.P. ("John"), seven-year-old N.P. ("Nora"), and six-year-old R.P. ("Ricky"). Pursuant to a January 23, 2017 "Agreed Order in Suit Affecting the Parent-Child Relationship" issued by the 257th District Court of Harris County (the "Family Court"), Mother and Father agreed to be joint managing conservators of the children, with Father having the exclusive right to determine the primary residence of the children and Mother having access to the children under a standard possession order. Pursuant to her access rights, Mother picked up John, Nora, and Ricky from Father's home on
Fam. Code § 109.002(d); Tex.R.App.P. 9.8. For purposes of this opinion, we refer to the children by fictitious names. See Tex.
November 15, 2019. When they arrived at Mother's home, Mother asked them to try on new clothes she had bought for them. When John undressed, Mother noticed that he had significant bruising on the front and back of his legs. Mother became alarmed and called her attorney. She also took pictures and videos of John's bruises and called Child Protective Services ("CPS").
On November 18, 2019, Mother applied for a protective order in Harris County pursuant to title 4 of the Texas Family Code. Mother alleged that Father had engaged in family violence with respect to all three of the children by committing acts intended "to result in physical harm, bodily injury, assault, or sexual assault or were threats that reasonably placed [John, Nora, and Ricky] in fear of imminent physical harm, bodily injury, assault, or sexual assault." The Harris County District Clerk assigned Mother's application for a protective order to the 280th District Court of Harris County (the "280th District Court"). Mother also filed a petition to modify the parent-child relationship ("SAPCR") in the Family Court, the court of continuing, exclusive jurisdiction. Mother's petition included a request for an ex parte temporary restraining order ("TRO") against Father, which the Family Court granted. The Family Court held a hearing on Mother's request for temporary orders on November 26, 2019. The Family Court issued an interim order after the hearing which, among other things, removed the language in the TRO restricting Father's possession of and access to the children.
Neither Mother's petition nor the Family Court's orders are included in the appellate record. Our record also does not include a transcript of any hearings held in the Family Court. Nevertheless, Father made factual assertions in his brief regarding these events and Mother has not contradicted them. Therefore, we accept these statements as true. Tex.R.App.P. 38.1(g) (stating that "[i]n a civil case, the court will accept as true the facts stated unless another party contradicts them"); see also In re R.A.O., 561 S.W.3d 704, 705-06 (Tex. App.-Houston [14th Dist.] 2018, no pet.) (accepting father's uncontradicted statement in the background section of his appellant's brief that Office of Attorney General filed suit against father seeking modification of his child-support obligation, even though petition was not included in appellate record).
The 280th District Court held a hearing on Mother's application for a protective order on December 2, 2019, at which Mother, Mother's husband, Father, and Father's sister testified. The parties submitted various exhibits and Mother's attorney also testified about attorney fees.
A. December 2, 2019 Hearing on Application for Protective Order
1. Mother's Testimony
Mother picked up John, Nora, and Ricky from Father's home on November 15, 2019. When they arrived at Mother's house, Mother asked the children to try on new clothes she had bought for them. When John undressed, Mother noticed that he had significant bruising on the front and back of his legs. Mother testified that when she asked John how he had gotten the marks on his legs, John responded that his teacher had called Father because he had misbehaved at school. When John arrived home later that day, John told Mother that Father was waiting for him with belt in hand. According to Mother, John told her that when he went inside the house, Father began "hitting, beating up [his] backpack with the belt." John, who had asked for permission to go to the bathroom, told Mother that Father continued to hit the bathroom door with the belt and that Father began "beating him, hitting him" the moment he stepped out of the bathroom. Mother testified that John tried to run away, but fell to the floor, and that Father continued to beat him while he was lying on the floor. When John asked Father for a second chance, Father told him that there were no "second chances" in his home.
According to Mother, seven-year-old Nora saw Father discipline her brother John while Ricky, their youngest sibling, then only six, "ran to hide himself." Mother testified that John also told her that Father took the children to get dinner from a fast-food restaurant later that day, but Father refused to buy John anything to eat. Mother testified that she took more photographs of John's bruises on Monday, November 18, 2019. The photographs Mother took on November 15 were admitted into evidence as Applicant's Exhibits 1 to 5. The photographs Mother took on November 18, 2019 were admitted as Applicant's Exhibits 6 to 9.
Mother testified that this was not the first time she had noticed marks or bruises on her children after picking them up from Father's home. Mother identified Exhibit 10 as a photograph she took in November 2018, depicting bruises on John's buttocks. She also testified that her youngest son, Ricky, came home from Father's home with bruises on his body in January 2019. She provided photographs of the bruises, which were marked as Applicant's Exhibits 11 and 12.
2. Apolinar Lara's Testimony
Mother's husband, Apolinar Lara, testified that he was present when John was changing clothes on November 15, 2019, and he too noticed the bruises on John's legs. Lara heard Mother's testimony regarding John's outcry allegations of abuse, and he testified that if he were to testify as to the outcry, his testimony would be the same as Mother's testimony.
3. Father's Testimony
Father, who took the stand next, admitted that he sometimes spanks his children. He denied, however, regularly using corporal punishment to discipline the children or having left marks or bruises on their bodies due to such discipline. He admitted that he received a phone call from John's teacher the week of November 10, 2019, but he denied being angry with John because of the phone call. Although Father acknowledged that he had disciplined John the week of November 10, Father denied using a belt or a strap or causing the marks and bruises depicted in the photographs Mother submitted. The trial court judge asked Father, "Sir, in looking at those photographs, do you think that this is reasonable discipline?" Father responded, "No, ma'am. I don't know what that is." The judge also asked Father, "If I bring the child in, what do you think the child's gonna say to me?" Father responded, "As the amount of time that they've spent with the mom and the history of her brainwashing my kids constantly, I'm pretty sure I know what they'd say."
Mother's attorney testified about the reasonableness and necessity of his attorney's fees. After his testimony, Mother rested.
4. Alejandra Pruneda's Testimony
Alejandra Pruneda testified during Father's case in chief. Alejandra, the children's paternal aunt, lives with Father, John, Nora, and Ricky. When asked how Father typically disciplined the children, Alejandra testified that he used "[j]ust regular spanking," took away their electronics or privileges, and put them in timeout. Alejandra testified that she had never seen Father use corporal punishment that she considered to be excessive. She also testified that she had never felt the need to intervene on the children's behalf or seen them beg Father to stop when he was discipling the children.
According to Alejandra, Father normally spanks the children on the buttocks, and when he is done, the children listen to him and then go to their rooms. Alejandra testified that Father, who normally disciplines the children in the living room, sends the other children to their room during that time. When presented with the photographs Mother had taken of John, Alejandra testified that she had never seen bruises like those on any of the children. Alejandra testified that she could not think of any conversations that she had with the kids that were negative towards Father.
5. Father's Testimony
Father retook the stand and testified he received copies of photographs depicting John's legs that CPS took on November 20, 2019. The photographs were admitted into evidence as Respondent's Exhibits 1 and 2. Father described the difference between those photographs and the photographs taken by Mother on November 15 and 18, 2019. After discussing John's skin tone and the accuracy of the photographs, Father opined that CPS's photographs were more accurate than Mother's photographs. Father also testified that he rarely uses spanking as a form of punishment and that he spoke to Mother about discipline. Father testified that he and Mother discussed how to discipline the children in September 2019, after John told Father that he did not want to go to Mother's home that weekend. According to Father, Mother told him that John was a manipulative liar who was only telling Father things because she had punished John. Father testified that he never spanked John outside his buttock area.
Father also testified that there were three videos of the children taken on November 15, 2019. The videos were admitted as Respondent's Exhibits 3 to 5. The videos show John sitting down just before going to Mother's home on November 15, as well as the children running in and out of the house and their general mood toward Father. The videos also show that the children were at home with Father less than an hour on November 15, 2019. Father testified that the last time he spanked John was "around November 1" and he did so only because John had been misbehaving at school.
He testified that the last time he spanked John "was about two weeks prior to that weekend. So around November 1" and that he did so only because John had been misbehaving at school. He also testified that he received a call from John's teacher the week of November 10th, further admitting he disciplined John that week, but denying using a belt or strap. Father made inconsistent statements concerning the date the last spanking occurred.
6. Mother's Testimony
Mother, who was recalled to the stand, testified that she did not observe any marks on the children on Halloween 2019. She acknowledged that she had presented no evidence that Father had harmed Nora. When asked about Ricky, Mother testified that the photograph taken of Ricky in January 2019 was evidence of harm. She testified that she did not go to court at that time, because the marks were not as serious as the ones she observed on John on November 15, 2019.
Mother testified that John was unable to pinpoint the date on which he "had been beaten" and that she was not alleging that it had occurred on November 15, 2019. She also testified that Ricky was not present, and therefore had not seen, when Father hit John, because when the incident occurred, Ricky ran and hid.
At the end of the hearing, the judge asked Mother to bring the three children to court the next day to meet with her. The judge announced that she was taking the protective order under advisement and would give the parties her ruling after meeting with the children. Nothing in the record indicates whether the meeting occurred and what if, anything, the trial court asked the children or what information they may have provided to the court. Ultimately, the court granted the requested protective order.
B. December 16, 2019 Hearing for Entry of Protective Order
On December 16, 2019, the trial court held a hearing for entry of the protective order. During the hearing, Father's counsel objected to the portion of the proposed protective order stating that the court had found that Father had caused "serious bodily injury to a member of the applicant's family or household" because the judge had not announced any such finding in her rendition of judgment. When asked if she was making a finding of serious bodily injury, the judge confirmed that she was. The trial court issued the final protective order on December 16, 2019. Father filed a motion for new trial, which the court denied.
The court's rendition is not included in the record.
This appeal followed.
Sufficiency of the Evidence
In his first and second issues, Father argues that the evidence is legally and factually insufficient to support issuance of the protective order for any of the children under Section 85.001 of the Texas Family Code. In his first issue, Father argues that the evidence is legally and factually insufficient to support a finding of family violence as it concerns John. In his second issue, he argues that the evidence is legally and factually insufficient to support a finding of family violence as to Nora and Ricky.
Specifically, Father argues that the only evidence he engaged in family violence consists of (1) inadmissible hearsay statements John made to Mother, (2) Mother's conclusory statement that Father beat John, and (3) some altered pictures of John's bruises. He also argues the evidence supporting the allegation that violence will occur in the future is limited to controverted events and Mother's conclusory statements. Father also argues that there was no evidence of any harm to his two younger children, Nora and Ricky, and that there was no evidence that any of the alleged marks went beyond permissible corporal punishment.
A. Standard of Review
When the trial court acts as a factfinder, we review its findings under the legal and factual sufficiency standards. Boyd v. Palmore, 425 S.W.3d 425, 429 (Tex. App.-Houston [1st Dist.] 2011, no pet.) (citing In re Doe, 19 S.W.3d 249, 253 (Tex. 2000)). When a party who does not have the burden of proof at trial challenges the legal sufficiency of the evidence, we consider 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 factfinder could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); City of Hous. 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 more than a scintilla of evidence supports the challenged finding, it is legally sufficient and we will overrule the issue. Haggar Clothing Co. v. Hernandez, 164 S.W.3d 386, 388 (Tex. 2005); Hildebrandt, 265 S.W.3d at 27. There is more than a scintilla of evidence if the evidence rises to a level that would enable reasonable and fair-minded people to reach differing conclusions. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004).
In reviewing a factual sufficiency challenge, we examine the entire record. We consider and weigh all the evidence, both in support of and contrary to the challenged finding. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); Boyd, 425 S.W.3d at 429. After considering and weighing all the evidence, we 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).
The factfinder, as the sole judge of the credibility of the witnesses and the weight to be given their testimony, has a right to resolve any conflicts in the evidence and to choose which testimony to believe. City of Keller, 168 S.W.3d at 819; see also Boyd, 425 S.W.3d at 431. We cannot substitute our opinion for that of the trier of fact only because we might reach a different conclusion. Boyd, 425 S.W.3d at 429.
B. Applicable Law
The Texas Family Code provides that a court shall enter a protective order if it finds that family violence (1) has occurred, and (2) is likely to occur in the future. Tex. Fam. Code §§ 81.001, 85.001. "Family violence" is defined, in pertinent part, as:
[A]n 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.Id. § 71.004(1). "The purpose of the protective order statute is not to remedy past wrongs or punish prior criminal acts; rather, it seeks to protect the applicant and prevent future violence." Roper v. Jolliffe, 493 S.W.3d 624, 634-35 (Tex. App.- Dallas 2015, pet. denied).
Aside from acts intended to result in physical harm, threats that reasonably place the victim in fear of imminent harm also constitute family violence. See, e.g., Boyd, 425 S.W.3d at 430-31 (concluding that Boyd committed act of family violence when he blocked Palmore's car with his body and jumped on hood of car); Clements v. Haskovec, 251 S.W.3d 79, 85 (Tex. App.-Corpus Christi 2008, no pet.) (concluding that Clements committed act of family violence by raising his fist and making other threats though he never struck family member). In cases involving protective orders against family violence, evidence that a person has engaged in abusive conduct in the past permits an inference that the person will continue this behavior in the future. See Teel v. Shifflett, 309 S.W.3d 597, 604 (Tex. App.- Houston [14th Dist.] 2010, pet. denied) ("The trial court reasonably could have concluded that future violence is likely to occur based on the testimony showing a pattern of violent behavior."); In re Epperson, 213 S.W.3d 541, 544 (Tex. App.- Texarkana 2007, no pet.) (concluding past and continuing pattern of behavior showed applicant was reasonable in fearing respondent would commit acts of "family violence" in future).
C. Analysis
1. John
Father argues that there is legally and factually insufficient evidence supporting the trial court's finding that he committed family violence with respect to John, because Mother's testimony concerning John's statements was inadmissible hearsay and her photographs of John's bruises were altered. He also contends that, even if he did cause John's injuries, there was no evidence that he intended to harm John. Finally, he argues that the bruises on John's body did not go beyond reasonable discipline, and therefore, the spanking cannot constitute family violence. We consider each argument in turn.
Father first argues that Mother's testimony regarding the statements John made to her about the abuse was inadmissible hearsay. We review a trial court's ruling on the admissibility of evidence under an abuse of discretion standard. See Serv. Corp. Int'l v. Guerra, 348 S.W.3d 221, 235 (Tex. 2011). A trial court abuses its discretion if it issues a ruling "'without regard for any guiding rules or principles.'" Owens-CorningFiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998) (quoting City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995). An appellate court must uphold a trial judge's evidentiary ruling if there is any legitimate basis to support the ruling. Id.; see also State Bar of Texas v. Evans, 774 S.W.2d 656, 658 (Tex. 1989). "Further, even where the trial court errs in sustaining a specific untenable objection, an appellate court should uphold the ruling if there is any other ground for doing so, even though not urged below." Evans, 774 S.W.2d at 658 n.5.
"In a hearing on an application for a protective order, a statement made by a child 12 years of age or younger that describes alleged family violence against the child is admissible as evidence in the same manner that a child's statement regarding alleged abuse against the child is admissible under Section 104.006 in a suit affecting the parent-child relationship." Tex. Fam. Code § 84.006. Family Code Section 104.006 states that a statement made by a child 12 years of age or younger that describes alleged abuse against the child, without regard to whether the statement is otherwise inadmissible as hearsay, is admissible as evidence if, in a hearing conducted outside the presence of the jury, the court finds that the time, content, and circumstances of the statement provide sufficient indications of the statement's reliability and (1) the child testifies or is available to testify at the proceeding in court or in any other manner provided for by law, or (2) the court determines that the use of the statement in lieu of the child's testimony is necessary to protect the child's welfare. Id. § 104.006. In determining the reliability of a child's out-of-court statement, the focus of the inquiry must remain upon the child's outcry statement describing the abuse, not the abuse itself.
The record indicates that John was available to testify, and that Mother agreed during the hearing to bring the children to court the next day for a meeting with the judge. Mother testified that John's outcry statements occurred the day she picked him up from Father's home and just after she saw John's bruises that same day. Mother took and presented photographs depicting John's bruises as they appeared on November 15 and 18, 2019, which the trial court could have found aligned with John's statements about the abuse as related by Mother. John's statements are also consistent with Father's testimony that he spanked John in November 2019, because John had been misbehaving at school. Because this was a hearing in which the trial court was the factfinder, rather than a jury, it was not necessary for the trial court to conduct a separate hearing to evaluate the reliability of the outcry testimony. See In re K.L., 91 S.W.3d 1, 16-17 (Tex. App.-Fort Worth 2002, no pet.) (holding that Texas Family Code § 104.006 does not require trial court to conduct prior hearing on admissibility of hearsay statements in bench trial so long as court considered issue of their admissibility). We thus conclude that the trial court did not abuse its discretion by admitting Mother's testimony concerning John's statements about the abuse. See In re M.R., 243 S.W.3d 807, 814-15 (Tex. App.-Fort Worth 2007, no pet.) (holding trial court did not abuse its discretion by admitting outcry statements made to foster mother, including allegation that parent had spanked her with a belt, pursuant to section 104.006 because child was available to testify, there was evidence supporting reliability of child's statements, child's statements were specific and consistent with other testimony, and content of statements was corroborated by other evidence).
Mother testified that she observed significant bruising and marks on the front and back of John's legs on November 15, 2019. John told Mother that his teacher had called Father to tell him John misbehaved at school and that Father was waiting for him with a belt in his hand when John arrived home from school. John could not remember the exact date of the incident, but Mother testified that when she last had possession of John on Halloween, approximately two weeks prior, she did not notice bruises or marks on John. According to John, Father began "hitting, beating up [his] backpack with the belt" as soon as John walked in the house. Father, who allowed John to go to the bathroom, followed John and continued to hit the bathroom door with the belt. According to John, Father began "beating him, hitting him" the moment he stepped out of the bathroom. John tried to run away, but he fell, and Father continued to hit him while he was lying on the floor. When John asked Father for a second chance, Father told him that there were no "second chances" in his home. John also told Mother that Father took all three children to a fast-food restaurant for dinner later that day, but that Father refused to buy John anything to eat.
Father argues next that, even taken as true, the acts described do not constitute family violence because there is no evidence of past violent conduct, only testimony concerning past reasonable discipline, and parents may use corporal punishment for reasonable discipline of a child. See Tex. Fam. Code § 151.001(e)(1); In re A.S., 261 S.W.3d 76, 88 (Tex. App.-Houston [14th Dist.] 2008, pet. denied); In re Wean, No. 03-10-00383-CV, 2010 WL 3431708, at *5 (Tex. App.-Austin Aug. 31, 2010, orig. proceeding) (mem. op.). But use of corporal punishment is not a shield that precludes a findings of family violence in all cases, nor does it foreclose a court's ability to consider the circumstances surrounding the use of such discipline. Although parents may use corporal punishment to discipline their children, corporal punishment may, in some cases, rise to the level of family violence. "[F]or corporal punishment to constitute family violence, there must be some evidence-such as severity of injury, type of instrument used, or mental or emotional state of the perpetrator-that would transcend a reasonable level of parental discretion regarding discipline." In re Wean, 2010 WL 3431708, at *5.
Father relies on In re A.S., 261 S.W.3d 76 (Tex. App.-Houston [14th Dist.] 2008, pet. denied) and In re Wean, No. 03-10-00383-CV, 2010 WL 3431708 (Tex. App.-Austin Aug. 31, 2010, orig. proceeding) (mem. op.) to advance his argument that his use of corporal punishment does not constitute family violence. But his reliance on In re Wean and In re A.S. is misplaced because both cases are distinguishable.
In In re A.S., the father was alleged to have over-disciplined his child twice by spanking him. The mother testified that the first spanking left no marks on the child. There was also no evidence about how the father disciplined the child the second time and no photographs from either incident were admitted into evidence. In re A.S., 261 S.W.3d at 88. In In re Wean, the mother alleged that the father had engaged in excessive corporal punishment of their three children. The physical evidence admitted at trial consisted of six photographs. Four of the photographs showed marks and scrapes on locations that did not suggest spankings. And while the other two photographs showed red marks on a child's buttocks, there was conflicting testimony about how the child received the marks. Although two of the photographs were taken the day of the alleged spanking, the court noted that the marks did not "show the coloring of a bruise, and do not appear significant." In re Wean, 2010 WL 3431708 at *5.
The opinion does not discuss when the other photographs were taken.
In this case, John told Mother that Father hit him after Father learned that he had misbehaved at school. Father admitted that he spanked John for misbehaving at school and he claimed that the spanking occurred "around November 1"- approximately two weeks before Mother picked the children up on November 15, 2019. There is thus some evidence from which the trial court could reasonably infer that John's bruises and marks were over two weeks old when Mother photographed his injuries on November 15 and 18, 2019. Bruises and marks visible to the naked eye two weeks after a spanking are evidence from which a trial court may reasonably infer that the corporal punishment imposed exceeded the bounds of "reasonable discipline" and thus constituted family violence in this case. See Tex. Fam. Code § 151.001(e)(1) (parent may use corporal punishment for reasonable discipline of child); see also In re Wean, 2010 WL 3431708, at *5 (stating severity of injury is one type of evidence indicating corporal punishment "transcend[ed] a reasonable level of parental discretion regarding discipline").
To the extent Father's testimony that the spanking occurred "around November 1" is inconsistent with his testimony that he received a call from John's teacher the week of November 10th and he disciplined John that week, it was the trial court's prerogative as the trier of fact to resolve any conflicts in the evidence and to choose which testimony to believe. City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005); see also Boyd v. Palmore, 425 S.W.3d 425, 421 (Tex. App.-Houston [1st Dist.] 2011, no pet.).
Father also argues that even if he did cause John's injuries, there was no evidence of his intent to harm John. The trial court, however, could have reasonably inferred that Father had the requisite mens rea from the circumstances surrounding the incident, including testimony that Father began hitting John with a belt right after John walked in the house, followed John to the bathroom, beat on the bathroom door with the belt until John retuned, and then continued to strike John with the belt repeatedly, even after John had fallen to the floor. See Colvin v. Colvin, No. 03-03-00234-CV, 2004 WL 852266, at *7 (Tex. App.-Austin Apr. 22, 2004, no pet.) (mem. op.) (intent to harm can be inferred from circumstances surrounding event).
Based on this evidence, the trial court could have reasonably found that family violence had been committed and that similar family violence was likely to happen in the future. See Boyd, 425 S.W.3d at 432 (stating single act of family violence would permit finding that person was likely to engage in future family violence). Although Father denied using excessive corporal punishment and causing John's injuries, the trial court was the sole judge of the credibility of the witnesses and the weight to be given their testimony and we cannot substitute our opinion for the trial court's opinion only because we might reach a different conclusion. Id. at 431. While there was conflicting testimony over whether Mother altered her photographs, it was the trial court's prerogative to consider the conflicting testimony and review the photographs and draw conclusions as to the accuracy of the photographs. See City of Keller, 168 S.W.3d at 819; see also Boyd, 425 S.W.3d at 431.
After considering all the evidence in the light most favorable to Mother, indulging every reasonable inference in her favor and disregarding contrary evidence unless a reasonable factfinder could not, we conclude that there is more than a scintilla of evidence supporting the trial court's findings that family violence occurred as to John, and was likely to occur in the future. See Tex. Fam. Code §§ 81.001, 85.001; City of Keller, 168 S.W.3d at 827.
After considering and weighing all the evidence, we conclude that the evidence is not so weak, nor is the finding so against the great weight and preponderance of the evidence, that it is clearly wrong and unjust. Cain, 709 S.W.2d at 176.
We overrule Father's first issue.
2. Nora and Ricky
In his second issue, Father argues that there is legally and factually insufficient evidence supporting the trial court's finding that family violence had occurred and was likely to occur in the future with respect to Nora and Ricky. He argues there is no evidence that he engaged in any threatening actions towards his two younger children.
Texas Family Code Section 71.004(1) 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 § 71.004(1). As noted, family violence may exist not only in situations involving physical harm, but also in those where the family member subject to the protective order places another family member in "fear of imminent physical harm." Clements, 251 S.W.3d at 85 (finding family violence and affirming issuance of protective order against husband even though husband had not physically struck his wife or daughter).
We note that in termination cases, evidence that a child witnessed violence directed at another member of the household supports a finding of endangerment for purposes of terminating parental rights. The standard of review in parental termination cases is clear and convincing evidence which is higher than the preponderance of the evidence standard applicable in the present case. See Porter v. Tex. Dep't of Protective & Reg. Servs., 105 S.W.3d 52, 57 (Tex. App.-Corpus Christi-Edinburg 2003, no pet.) (stating that "clear and convincing" is intermediate standard which falls between "preponderance of the evidence" standard of civil proceedings and reasonable doubt standard of criminal proceedings).
According to Mother, Nora, then only seven, saw Father hit John repeatedly with a belt when he came home from school, while Ricky, then only six, "ran to hide himself." Mother also testified that Father hit Ricky in January 2019, and she provided photographs of what she contended were Ricky's bruises from that incident.
The trial court could have reasonably inferred that Father's conduct toward John placed Nora and Ricky in fear of imminent physical harm, bodily injury, or assault because according to the evidence, Nora witnessed the incident, Ricky ran and hid when the hitting began, and Father had hit Ricky in the past.
After considering all the evidence in the light most favorable to Mother, indulging every reasonable inference in her favor and disregarding contrary evidence unless a reasonable factfinder could not, we conclude that there is more than a scintilla of evidence supporting the trial court's findings that family violence occurred with respect to Nora and Ricky, and was likely to occur in the future. See Tex. Fam. Code §§ 81.001, 85.001; City of Keller, 168 S.W.3d at 827.
After considering and weighing all the evidence, we conclude that the evidence is not so weak, nor is the finding so against the great weight and preponderance of the evidence, that it is clearly wrong and unjust. Cain, 709 S.W.2d at 176.
We overrule Father's second issue.
Duration of the Protective Order
In his third issue, Father argues the evidence is legally and factually insufficient to support the rendering of a protective order for greater than two years under Texas Family Code Section 85.025. Section 85.025(a) states that "[e]xcept as otherwise provided by this section, an order under this subtitle is effective: (1) for the period stated in the order, not to exceed two years; or (2) if a period is not stated in the order, until the second anniversary of the date the order was issued." Tex. Fam. Code § 85.025(a). Section 85.025(a-1), however, states that the duration of a protective order may exceed two years in some cases:
The court may render a protective order sufficient to protect the applicant and members of the applicant's family or household that is effective for a period that exceeds two years if the court finds that the person who is the subject of the protective order:
(1) committed an act constituting a felony offense involving family violence against the applicant or a member of the applicant's family or household, regardless of whether the person has been charged with or convicted of the offense;
(2) caused serious bodily injury to the applicant or a member of the applicant's family or household; or
(3) was the subject of two or more previous protective orders rendered:
(A) to protect the person on whose behalf the current protective order is sought; and
(B) after a finding by the court that the subject of the protective order:
(i) has committed family violence; and
(ii) is likely to commit family violence in the future.Id. § 85.025(a-1).
Here, the trial court found that Father "caused serious bodily injury to a member of [Mother's] family or household" and therefore the protective order will continue "in full force and effect as to each [child] until each such [child] has turned 18 years of age or until further order of this Court." "Serious bodily injury" means "bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." Tex. Penal Code § 1.07(a)(46). Although some evidence shows that the marks and bruises observed on John's legs were caused by Father, there is no evidence that John's injuries created a substantial risk of death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. See id.; see also id. § 1.07(a)(8) (defining "bodily injury" as "physical pain, illness, or any impairment of physical condition"). We thus conclude that the evidence is legally insufficient to support the trial court's finding of serious bodily injury under Section 85.025(a-1)(2). See City of Keller, 168 S.W.3d at 827.
Mother argues that the protective order may nonetheless be extended beyond two years under Section 85.025(a-1)(1), because Father committed an act constituting a felony offense involving family violence against John, namely, injury to a child. See Tex. Penal Code § 22.04(a)(3); see also Tex. Fam. Code § 85.025(a-1)(1). Mother argues that when findings of fact and conclusions of law are not requested after a bench trial, all fact findings necessary to support the trial court's judgment are implied and the judgment must be affirmed if it can be upheld on any legal theory supported by the evidence. See generally Wofford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990).
Mother's argument is unavailing. The trial court's justification for extending the protective order beyond two years is clear on the face of the order and it was not premised on Section 85.025(a-1)(1) requiring a finding of a "felony offense involving family violence." Rather, the trial court expressly found that Father caused serious bodily injury to a member of Mother's household under Section 85.025(a-1)(2) and extended the duration of the protective order beyond the two-year period based on that fact finding. See Tex. Fam. Code § 85.025(a-1) ("The court may render a protective order . . . that is effective for a period that exceeds two years if the court finds that the person who is the subject of the protective order" satisfies at least one of the criteria set forth in section 85.025(a-1)(1)-(3)) (emphasis added).
And even if the parties had requested additional fact findings, the trial court was not obligated to make any such findings. See Peña v. Garza, 61 S.W.3d 529, 531-32 (Tex. App.-San Antonio 2001, no pet.) (stating that trial court is not required to make additional findings when protective order contains findings required by statute). Here, the protective order contains findings under Section 85.025(a-1)(2) which, if supported by sufficient evidence, justify the issuance of a protective order for a duration of over two years. As noted, the trial court's express finding of serious bodily injury under Section 85.025(a-1)(2) was not supported by legally sufficient evidence. And none of the required findings under Section 85.025(a-1)(1) or (3), which would support a term of more than two years, were included in or formed the basis of the protective order. See Tex. Fam. Code § 85.001(d).
We sustain Father's third issue.
Inconsistent Terms
In his fourth issue, Father argues that the protective order is void because it contains contradictory terms that would cause him to violate the protective order each time he exercises his permitted visitation potentially exposing him to fine, arrest, or imprisonment.
The protective order names John, Nora, and Ricky as "protected persons" and prohibits Father "from going to or near, or within 200 feet of, any location where any Protected Person is known by [Father] to be and further prohibit[s Father] from remaining within 200 feet after [he] becomes aware of Protected Person's presence." A separate provision in the protective order, however, grants supervised visitation to Father finding that awarding Father "supervised visitation with the children through a supervised possession/access program would be in the best interest of the children."
"A judgment must be sufficiently definite and certain to define and protect the rights of all litigants, or it should provide a definite means of ascertaining such rights, to the end that ministerial officers can carry the judgment into execution without ascertainment of facts not therein stated." Stewart v. USA Custom Paint & Body Shop, Inc., 870 S.W.2d 18, 20 (Tex. 1994). The protective order's prohibition of contact with John, Nora, and Ricky effectively terminates Father's rights to possession and access of the children while at the same time granting him supervised visitation with the children. We conclude that the protective order contains internally conflicting provisions such that ministerial officers could not execute it "without ascertainment of facts not therein stated." Id.
We hold that the trial court erred by issuing an order prohibiting Father from being within 200 feet of John, Nora, and Ricky and granting him supervised visitation with the children without indicating how those provisions should be reconciled. See Lewis v. Yancy, No. 01-19-00348-CV, 2020 WL 7251448, at *8 (Tex. App.-Houston [1st Dist.] Dec. 10, 2020, no pet.) (mem. op.); see also Copeland v. Copeland, No. 05-18-01431-CV, 2020 WL 4047969, at *7-8 (Tex. App.-Dallas July 20, 2020, no pet.) (mem. op.) (concluding that protective order that prohibited father from communicating with or being within 500 feet of children, defined as "protected persons" in order, but that also provided for father's supervised possession of or access to the children, contained internally conflicting provisions).
Father's argument that the inconsistencies in the protective order render the order void under Ex parte Slavin, 412 S.W.2d 43 (Tex. 1967), is unavailing. Ex parte Slavin supports the proposition that a contempt order based on an unenforceable decree is void; it does not hold that the underlying order is void. See id. at 44-45. Although Father could be exposed to the possibility of a contempt order, Father has not been held in contempt, nor has he been subject to a criminal charge. When as here, a protective order contains internally inconsistent provisions, the appropriate disposition is to remand the case to the trial court for further proceedings, during which time the trial court may resolve the inconsistency. See Lewis, 2020 WL 7251448, at *8.
We sustain Father's fourth issue.
Subject Matter Jurisdiction and Res Judicata
In his fifth issue, Father argues that the 280th District Court lacked subject matter jurisdiction to entertain Mother's application for a protective order because the Family Court, the court of continuing jurisdiction over the children, had held an evidentiary hearing one week prior "concerning the same factual allegations and made a rendition on issues res judicata thus making the protective order void."
Father's argument that the 280th District Court did not have subject matter jurisdiction to hear Mother's application for a protective order because of a pending SAPCR in another district court is unavailing. The 280th District Court was designated as a domestic violence district court in 2009. Tex. Gov't Code § 24.112. The domestic violence court must give preference to cases involving family violence and dating violence. Id. A domestic violence case means an original application for a protective order has been filed. Id. With this designation, the 280th District Court became the proper court in which to apply for a protective order irrespective of any other action pending in any other court. See In re Keck, 329 S.W.3d 658, 660 (Tex. App.-Houston [14th Dist.] 2010, orig. proceeding) (explaining that 280th District Court was designated Domestic Violence Court for Harris County and is proper court for filing applications for protective orders under Texas Family Code and citing Tex. Gov't Code § 24.112(h)). For that reason, the 280th District Court had subject matter jurisdiction over Mother's application for a protective order.
The Family Court's continuing, exclusive jurisdiction over the parties to the SAPCR, including issues such as conservatorship, possession, and access to the children, does not alter this conclusion. That a court of continuing, exclusive jurisdiction exists under Texas Family Code Section 155.001(a) does not deprive another court, of competent jurisdiction, of jurisdiction over a related protective order. See In re Saldana, 607 S.W.3d 448, 449 (Tex. App.-Houston [14th Dist.] 2020, orig. proceeding [mand. denied]) (holding 280th District Court was not deprived of jurisdiction to issue protective order because 257th District Court was court of continuing, exclusive jurisdiction for SAPCR); see generally Tex. Fam. Code § 155.001(a) (providing that court acquires continuing, exclusive jurisdiction over matters provided for by Title 5-governing the parent-child relationship-in connection with child on rendition of final order). As the 14th Court of Appeals noted in In re Saldana, 607 S.W.3d 448, 449 (Tex. App.-Houston [14th Dist.] 2020, orig. proceeding), continuing, exclusive jurisdiction conferred to the Family Court under Family Code section 155.001 "affects jurisdiction in only matters covered by title 5 of the Family Code; it does not affect jurisdiction in protective-order proceedings under Chapter 82 of the Family Code, which falls within title 4 of the Family Code." See also Tex. Fam. Code §§ 82.001, 155.001; Copeland, 2020 WL 4047969, at *2 (citing Tex. Fam. Code § 85.063) (rejecting argument that only court of continuing, exclusive jurisdiction may issue protective order in family law matter).
Father's additional argument that the 280th District Court was prohibited from issuing the protective order based on res judicata is also unavailing. Father argues that the 280th District Court was barred from considering or issuing the protective order under principles of res judicata because the Family Court had conducted a hearing on Mother's application for temporary orders one week prior, based on the same facts raised in Mother's subsequent application for protective order. Father argues that the Family Court issued a temporary order in which it implicitly found that no credible evidence of family violence had been presented and did not find that family violence had occurred in the last two years. According to Father, this temporary order had preclusive effect and barred the issuance of the protective order.
For res judicata to apply, the defendant must show that: (1) there is a prior final judgment on the merits by a court of competent jurisdiction; (2) the parties in the second action are the same or in privity with those in the first action; and (3) the second action rests on claims that were or could have been raised in the first action. See Whallon v. City of Hous., 462 S.W.3d 146, 155 (Tex. App.-Houston [1st Dist.] 2015, pet. denied). Unlike subject-matter jurisdiction, res judicata is an affirmative defense that must be pleaded or else it is waived. See id.; see generally Green v. Parrack, 974 S.W.2d 200, 202 (Tex. App.-San Antonio 1998, no pet.) ("Generally, res judicata must be pled or be waived"). Because Father did not raise the affirmative defense of res judicata in the trial court, he may not raise it for the first time on appeal. Whallon, 462 S.W.3d at 155.
We further note that even if Father could challenge the trial court's protective order based on res judicata, he would not prevail on this issue because, as he concedes, res judicata only applies to prior final judgments or orders. Id. (stating res judicata applies only when, among other things, "there is a prior final judgment on the merits by a court of competent jurisdiction"). The only final order from the Family Court existing at the time Mother filed her application for protective order was the parties' prior "Agreed Order in Suit Affecting the Parent-Child Relationship." The events prompting Mother's application for the protective order occurred later, in 2018 and 2019. Thus, Mother could not have raised them in the prior proceeding. See Whallon, 462 S.W.3d at 155 (stating res judicata applies only when "the second action is based on claims that were or could have been raised in the first action"). Furthermore, even if Mother's application for temporary orders in the Family Court and her application for protective order depended on the same facts, res judicata is inapplicable. A temporary order is not a final order giving rise to res judicata.
The record before us does not contain a copy of the motion to modify the parent- child relationship Mother filed in the Family Court, the supporting declaration Mother attached to her motion to modify, the temporary orders issued by the Family Court on November 19, 2019 after the hearing on Mother's application for temporary orders, or the interim order issued by the Family Court on November 26, 2019. Although Father attached these documents to his brief under tabs B, C, D, and F, respectively, "documents attached as appendices to briefs do not constitute part of the record of the case and cannot be considered by this Court on appeal." Garcia v. Sasson, 516 S.W.3d 585, 591 (Tex. App.-Houston [1st Dist.] 2017, no pet.). Father also attached a copy of his motion for new trial. Although the motion itself is part of the appellate record, the documents attached to the motion are not evidence we can consider for purposes of appeal. See Marin v. Marin, No. 14-13-00749-CV, 2016 WL 1237847, at *4 (Tex. App.-Houston [14th Dist.] Mar. 29, 2016, no pet.) (mem. op.) (stating email attached to motion for new trial not part of appellate record because no hearing was held on motion and thus, "there was no opportunity for the email to be introduced into evidence and become part of the appellate record"). Therefore, we will not consider these documents for purposes of appeal.
We overrule Father's fifth issue.
Forum-Shopping
In his sixth issue, Father argues that Mother engaged in forum-shopping by simultaneously applying for a protective order in the 280th District Court and filing her application for a temporary restraining order and temporary orders in the Family Court. We disagree that Mother's decision to apply for a protective order in the 280th District Court constitutes inappropriate "forum shopping" because, as already noted, the 280th District Court is the designated Domestic Violence Court for Harris County and proper court for filing applications for protective orders under the Texas Family Code. See Tex. Gov't Code § 24.112; In re Keck, 329 S.W.3d at 660.
Father further contends that Mother's decision to file her application for a protective order in the 280th District Court violated his constitutional right to due process. Father did not raise his due process argument below. Thus, he has preserved nothing for our review. See In re L.M.I., 119 S.W.3d 707, 711 (Tex. 2003) (holding that father whose parental rights were terminated waived due process argument because he did not raise issue in trial court).
We overrule Father's sixth issue.
Conclusion
We reverse the portions of the trial court's protective order that extend the effective period of the order beyond two years and that prohibit Father from being within 200 feet of John, Nora, and Ricky, but also grant Father supervised visitation with the children, and remand this case to the trial court for further proceedings consistent with this opinion. We affirm the trial court's order in all other respects.