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In re E.A.K.

Court of Appeals of Texas, Fifth District, Dallas

June 1, 2017

IN THE MATTER OF E.A.K.

          On Appeal from the 292nd Judicial District Court Dallas County, Texas Trial Court Cause No. CV16-00181V-292nd

          Before Justices Francis, Brown, and Schenck

          MEMORANDUM OPINION

          MOLLY FRANCIS JUSTICE

         Appellant Marcus Dewon Sallis appeals a protective order issued in favor of E.A.K., his ex-girlfriend and mother of their son. In two issues, appellant contends (1) there is factually insufficient evidence to support a finding he was likely to commit family violence in the future and (2) the protective order exceeds the scope of allowable statutory protections by including a provision prohibiting him from coming within 500 feet of E.A.K.'s confidential school address. We conclude the first issue is without merit. The State concedes the second issue. Accordingly, we modify the protective order to remove the challenged provision and affirm as modified.

         E.A.K. testified she and appellant met in the summer of 2011 and began dating in November 2012. In the beginning, she said the relationship was "pretty good" because appellant traveled for his job and most of their interactions were by text message or email. When appellant returned to Dallas, she said they began dating seriously and she became pregnant. At first, they considered an abortion and went to a clinic. E.A.K. was seven weeks' pregnant at the time. She and appellant went in separate cars. When E.A.K. arrived, picketers and rioters were outside the clinic and came to her car. She was afraid and drove off.

         E.A.K. called appellant and asked him to meet her around the corner. When appellant arrived, E.A.K. said she was crying and emotional as she got into his car to discuss their decision. E.A.K. said appellant "got very angry" and, without warning, took his open hand and bashed her head against the passenger side window. E.A.K. started to cry and scream, and appellant was "yelling very loudly." E.A.K. ran to her car, drove off, and called 911. She met police nearby and made a report. Although the incident terrified her, she said she ultimately agreed not to prosecute the case because she and appellant were "having a child together."

         In February 2014, when E.A.K. was almost nine months' pregnant, a second incident occurred. E.A.K. was preparing for a baby shower scheduled the next day. E.A.K. said there were several tasks that appellant needed to complete, and he became "very agitated and angry." He yelled at her and called her a name, and she asked him to leave. As she was walking down the stairs, E.A.K. said appellant pushed her and she stumbled down six stairs to the landing. She got up, ran down the remaining stairs, and tried to open the front door. She said appellant put both hands on her chest and pushed her, causing her to fall backward over a stroller. E.A.K. said appellant's mother jumped on appellant and dragged him out the door, enabling E.A.K. to close the door and lock it. Appellant stood outside the door for several minutes screaming at E.A.K. before leaving. E.A.K. said her young daughter from a previous marriage watched the incident from the top of the stairs. E.A.K. said she called the police, but appellant was not arrested.

         After that incident, E.A.K. said she was "very afraid, " and she and appellant did not see each other until C.S. was born the following month. Following his birth, she said they were "trying to figure out" what was going to happen next. When C.S. was about three weeks old, appellant came to her house to visit him. She and appellant got into an argument over medical bills that they previously agreed to split. She said appellant began "raising his voice" and pushed her against the living room wall. Her sister, Nicole, witnessed the incident and told appellant to leave. Nicole corroborated E.A.K.'s story at trial. Nicole testified she was in the kitchen when she heard them arguing. She "peeked" into the room and saw appellant push E.A.K. against the wall. She said E.A.K. was holding the baby at the time and was still recovering from a Caesarian section operation. This was the only occasion Nicole said she witnessed physical abuse, but she said appellant raised his voice "[a]ll the time."

         The next incident occurred when E.A.K. and appellant took C.S. for his one-year checkup. E.A.K. said appellant was agitated during the appointment and tried to block her from leaving the room at the end of the exam. While she was checking out, appellant grabbed C.S. and left without saying anything. E.A.K. hurried after him and, because of their history, started to record what was happening on her phone.

         Appellant walked to his car and said he was leaving with C.S., even though the child was supposed to leave with E.A.K. Appellant had C.S. in one hand and was trying to open his car door with the other, and E.A.K. asked him to give her C.S. She said appellant turned around "very forcefully with his elbow" and elbowed her in the chest. E.A.K. said she fell to the ground and began screaming. Once she stood up, appellant handed her C.S., but took her cell phone and threw it across the parking lot. She ran to her car with C.S., locked her doors, and called 911 from the cell phone she used for work as a realtor. A photograph depicting a bruise on her chest was admitted into evidence.

         The final incident occurred on March 22, 2016. At that time, E.A.K. and appellant had a "strained relationship" but had been attending co-parenting classes. The classes had interfered with appellant's regularly scheduled visitation, so she contacted him to see if he wanted to spend time with C.S. They agreed to meet at 5 p.m. at a hotel parking lot at I-635 and Preston Road in

          Dallas, but the traffic was heavy and E.A.K. called to let him know she would be late. When she pulled into the parking lot twenty-three minutes late, she said appellant immediately began yelling at her, scolding her for being late, and calling her names. When she took C.S. out of his car seat and tried to hand him to appellant, appellant refused to take him, saying E.A.K. did not "take his time seriously" and that she was "going to pay for this."

         E.A.K. walked back to her car and put C.S. in his car seat. Appellant followed and grabbed her by the back of her arms and pulled her backward, causing her to fall on her tailbone. Appellant turned to take C.S. out of his car seat as E.A.K. got up and turned on her phone to record him. She said when appellant saw her with her cell phone, he "los[t] it" and came toward her. E.A.K. said she jumped on top of C.S., who was still in his car seat, to get in her vehicle and close the door. She locked the back doors, and appellant tried to force open the door. As she was climbing over the console area to lock the front doors, appellant entered her car through the front driver's side door. Appellant pushed E.A.K. backward into the passenger seat and pinned her down "by the neck" with one of his arms. E.A.K. said she was gasping for air, and then appellant squeezed her wrist until it popped and her cell phone fell from her hand. Appellant took her cell phone and got out of her car. E.A.K. was trying to "figure out" what to do when she realized she had lost her shoes on the parking lot. She got out to get them and then drove to a nearby sandwich shop to call police. The police took a report and photographed her injuries, which included scratches, bruises, and a swollen wrist. Several photographs depicting her injuries were admitted into evidence as well as a photograph showing damage to her vehicle's door handle.

         E.A.K. testified other things happened in between the incidents she had detailed in her testimony. She said appellant has "great anger" and is unpredictable, so most of their interaction is negative. Even so, she ...


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