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Watts v. Adviento

Court of Appeals of Texas, Second District, Fort Worth

March 28, 2019

Jermaine Watts, Appellant
v.
Lisa Adviento, Appellee

          On Appeal from the 325th District Court Tarrant County, Texas Trial Court No. 325-627998-17

          MEMORANDUM OPINION

          Per Curiam.

         In what we construe as six issues, pro se appellant Jermaine Watts appeals the family-violence protective order the trial court rendered against him.[1] See Tex. Fam. Code Ann. §§ 81.001, 85.001, .022. We affirm.

         I. BACKGROUND

         On October 19, 2017, appellee Lisa Adviento filed an application for a family-violence protective order against Watts to protect herself and three children, L.C., L.W.-A., V.W-A., as well as two other members of her family or household. See id. § 82.001, .002(a). Adviento alleged that she and Watts had been in a dating relationship and that Watts had engaged in family violence. She asked the trial court to issue a temporary ex parte protective order pending a final hearing and to issue a final protective order after the final hearing. See id. §§ 83.001, 84.001, 85.001.

         In affidavits attached to her application, Adviento averred that Watts had been abusive toward her and had made threats of violence toward her and her family. She asserted that Watts had physically and sexually assaulted her at his residence on August 14, 2017, and that he had threatened her and her family's safety if she reported the incident to the police. She said that after the August 14 incident, Watts made additional threats of physical harm toward her. She alleged that Watts had two other children with another woman, that he had been known to hit those children, and that he had an extensive criminal history that included violent offenses against other family members. She further averred that she was concerned Watts would follow through on his threats toward her.

         The trial court granted Adviento's request for an ex parte protective order and subsequently held a final hearing. Following the hearing, the trial court found that family violence had occurred and was likely to occur in the future and that Watts had committed family violence. See id. § 85.001(a)-(b). The trial court granted Adviento's application and rendered a final protective order against Watts. See id.

         II. JURISDICTION

         Before reaching Watts's issues, we address Adviento's argument that we lack jurisdiction over this appeal. She contends that the trial court's protective order did not dispose of all issues and, thus, is not final and appealable.

         To support her claim that the protective order did not dispose of all issues, Adviento relies on several facts. First, she notes that she filed her application for protective order "during the pendency" of a suit affecting the parent-child relationship (SAPCR). According to Adviento, the child who is the subject of that SAPCR is a protected person under the protective order at issue in this appeal, and Adviento additionally claims that she and Watts are the child's parents. Further, Adviento claims the trial court conducted its final hearing on her application for protective order "in conjunction with" its temporary-orders hearing in the SAPCR and that at the end of the hearing, the trial court issued temporary orders in the SAPCR in addition to granting Adviento's application for the protective order.

         Adviento argues that the trial court's future final judgment in the SAPCR, which remains pending, may alter the effect of the protective order and that, consequently, the protective order does not dispose of all issues. As we explain below, because the protective order was not rendered in a SAPCR or a suit for dissolution of marriage, we conclude that we have jurisdiction over this appeal.

         Family code section 81.009 governs an appeal from a protective order rendered under sections 81.001 and 85.001. See id. § 81.009. Section 81.009 provides that a protective order is immediately appealable unless it was rendered against (1) a party in a suit for dissolution of marriage or (2) a party in a suit affecting the parent-child relationship. Id.; In re Keck, 329 S.W.3d 658, 661 (Tex. App.-Houston [14th Dist.] 2010, no pet.). If either of those exceptions applies, then appeal of the protective order must await issuance of a final, appealable order in the underlying case. See id. § 81.009; Keck, 329 S.W.3d at 661. Otherwise, a party may appeal from the protective order. See Tex. Fam. Code Ann. § 81.009; Keck, 329 S.W.3d at 661.

         Adviento's argument implicates the second exception.[2] That exception applies when the trial court's protective order is rendered "in" a SAPCR. See Tex. Fam. Code Ann. § 81.009(c); Keck, 329 S.W.3d at 661. But that is not what happened here. Adviento's statements that she filed her application for protective order "during the pendency" of a SAPCR and that the trial court held a temporary orders hearing on the SAPCR "in conjunction with" the final hearing on her application for protective order suggest that the SAPCR and application for protective order are not one cause but separate causes. To verify whether that was so, we contacted the Tarrant County District Clerk, who confirmed that the SAPCR Adviento appears to reference is docketed as cause number 325-626771-17, while the protective order is docketed as cause number 325-627998-17. Further, the record shows that the protective order at issue in this appeal was rendered in cause number 325-627998-17, not cause number 325-626771-17. Thus, it was not rendered in the SAPCR. See Keck, 329 S.W.3d at 661 (holding that protective order was not rendered "in" a pending SAPCR in part because the SAPCR had a different cause number from the protective order).

         Since neither of the section 81.009 exceptions applies to the protective order in this case, we have jurisdiction over this appeal. See Tex. Fam. Code Ann. § 81.009(a); Keck, 329 S.W.3d at 661.

         III. SUFFICIENCY OF THE EVIDENCE

         In what we construe as his second issue, Watts contends the trial court's protective order is not supported by legally and factually sufficient evidence. Watts specifically argues that the evidence is legally and factually insufficient to show either that he committed an act of family violence or that he was likely to commit family violence again in the future. See Tex. Fam. Code Ann. §§ 81.001, 85.001, .022. We conclude the evidence is legally and factually sufficient to support the trial court's findings.

         A. Standard of Review [3]

         We may sustain a legal sufficiency challenge only when (1) the record discloses a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence establishes conclusively the opposite of a vital fact. Ford Motor Co. v. Castillo, 444 S.W.3d 616, 620 (Tex. 2014) (op. on reh'g); Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998). In determining whether there is legally sufficient evidence to support the finding under review, we must consider evidence favorable to the finding if a reasonable factfinder could and disregard evidence contrary to the finding unless a reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827 (Tex. 2005).

         When reviewing an assertion that the evidence is factually insufficient to support a finding, we set aside the finding only if, after considering and weighing all of the evidence in the record pertinent to that finding, we determine that the credible evidence supporting the finding is so weak, or so contrary to the overwhelming weight of all the evidence, that the answer should be set aside and a new trial ordered. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986) (op. on reh'g); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965).

         B. Applicable Law

         The family code provides that a trial court must render a protective order if it finds that family violence has occurred and is likely to occur in the future. Tex. Fam. Code Ann. §§ 81.001, 85.001, .022. Among other things, "family violence" refers to "dating violence." See id. § 71.004. As relevant here, dating violence means an act, other than a defensive measure to protect oneself, by an actor that is (1) committed against a victim or applicant for a protective order with whom the actor has or has had a dating relationship and (2) intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the victim or applicant in fear of imminent physical harm, bodily injury, assault, or sexual assault. See id. § 71.0021(a).

         C. Relevant Evidence

         1. Adviento

         Adviento testified that after she had dated Watts for about a year, he turned controlling. She stated that Watts would scream at and belittle her and that he had threatened her on multiple occasions. She testified about a telephone conversation she had with Watts that her father also heard because she had turned on the speakerphone function. According to Adviento, Watts said that he was not scared to hurt her, that he was going to kill her, and that he was not afraid to kill her family. Adviento said that as a result of this conversation, her family took steps to protect her from Watts, including putting her in counseling and installing security cameras around the house where she lived with her parents.

         Adviento additionally stated that Watts had also told her that if he was put in jail, he would send someone else to physically harm her. She further testified that Watts had pushed, slapped, punched, and kicked her during the relationship.

         Adviento stated that Watts's efforts to control her extended to her workplace. According to Adviento, Watts would come there to check on her. She stated that he had recently started an incident at her workplace that resulted in her employer asking him to leave, and she also said that her employer had barred Watts from coming to its facility. As a result of Watts's continued visits, Adviento stated, she was suspended, written-up, and moved from full-time to part-time employment.

         According to Adviento, Watts physically assaulted her in March 2017. She stated that she attempted to make a police report and to apply for a protective order after that incident but that she did not go through with the protective order because Watts threatened her and her family. Adviento also testified that she declined to pursue the police report because Watts had threatened her and her family "on multiple, multiple occasions." She indicated that she wanted to press charges against Watts and that the only reason she did not was because he had threatened her.

         Adviento testified that Watts sexually assaulted her on August 14, 2017. She said that on that day, she went to a see a movie with Watts and expected him to drive her back to her home after the movie. But instead of taking her home, Watts took her back to his apartment, telling her that he had some baby supplies for her. Adviento stated that Watts's brother, Jerry Valentine, was also at the apartment but that around 8:00 p.m., she and Watts were alone together in Watts's room, and Valentine was in a different room of the apartment. She said that Watts began making sexual advances on her but that she told him "no" and tried to fight him off. Adviento stated that Watts hit her when she tried to fight him off. She further testified that the next day, she went to the hospital and underwent a sexual assault nurse examination, which found that she had vaginal and rectal tearing and bleeding. Adviento testified that she feared that Watts would commit a future act of family violence if the trial court did not issue a protective order against him.

         In an attempt to show that he did not sexually assault Adviento on August 14, Watts asked her on cross-examination whether she had stayed the night at his apartment after the assault occurred, and Adviento replied that she had. Watts also asked her whether she had reported the sexual assault to the police, and Adviento stated that she had not. But Adviento added that the reason she had stayed at Watts's apartment after the sexual assault was because Watts was holding her against her will, and thus she had no choice. And she also stated that she did not report the incident to the police because ...


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