Affirmed and Memorandum Opinion filed March 17,=20
2009.
In The
Fourteenth=20
Court of Appeals
____________
NO. 14-07-00832-CV
____________
MICHAEL ALAN=20
FORD,=20
Appellant
V.
SELMA GAY=20
HARBOUR, =
Appellee
On Appeal from the =
311th District Court
Harris County, =
Texas
Trial Court Cause =
No. 2007-47857
M E M O R=20
A N D U M O P I N I O N
Appellant,=20
Michael Alan Ford, challenges a protective order entered against =
him=20
pursuant to the Texas Family Code. See Tex. Fam. Code =
Ann.=20
' =
71.001B87.004=20
(Vernon 2008). We affirm.
Factual=20
and Procedural Background
On August=20
13, 2007, appellee, Selma Gay Harbour, filed an application for a=20
protective order in which she also requested an ex parte temporary =
protective order. On August 15, 2007, the trial court =
granted=20
appellee an ex parte protective order and set the hearing on the=20
application for protective order for August 27, 2007. =
Appellant was=20
served with the temporary protective order, application for =
protective=20
order, and hearing notice. On August 27, 2007, appellant =
appeared=20
for the hearing along with counsel. The trial court granted=20
appellant=3Ds request=20
that the hearing be rescheduled and it was reset until August 31,=20
2007. On August 31, appellant appeared at the hearing along =
with his=20
attorney. However, appellant=3Ds counsel=20
filed a motion to withdraw. The trial court asked appellant =
if he=20
objected to his attorney withdrawing and appellant told the court =
he did=20
not. The trial court then granted the attorney=3Ds=20
motion. The trial court then proceeded with the hearing on=20
appellee=3Ds request=20
for a protective order.
Appellee=20
was the first to testify. Appellee testified that, at the =
time of=20
the hearing, appellant and appellee had been involved in an on and =
off=20
relationship for about six years. According to appellee, =
appellant=20
relocated to Houston, Texas and moved into appellee=3Ds=20
residence. Appellant and appellee then resided together in =
an=20
intimate relationship. Appellee testified that, throughout =
their=20
relationship, appellant had engaged in episodes of dating or =
family=20
violence. This conduct included sexually assaulting =
appellee,=20
wrestling appellee to the floor and stuffing a dirty sock in her =
mouth,=20
placing appellant=3Ds pet rat=20
on appellee=3Ds face=20
while she was sleeping, which resulted in appellee receiving =
facial=20
scratches, as well as conduct damaging the walls and appliances in =
the=20
residence. According to appellee, these episodes =
occurred=20
after appellant had been drinking alcohol or using drugs. =
Appellee=20
eventually learned to recognize when appellant=3Ds rages=20
were coming and would leave the residence for a couple of nights =
to give=20
appellant time to calm down. Appellee testified she asked =
appellant=20
to leave many times, but he always refused. On August 7, =
2007=20
appellee fled her residence for two days when appellant threatened =
to=20
throw a boom box radio through appellee=3Ds car=20
window. After appellee returned to her residence, on August =
11,=20
2007, some guests found a large rubber mallet under the cushions =
of the=20
sofa where appellant was sleeping. The police were called =
and=20
appellant then moved out of the residence into a hotel. At the =
protective=20
order hearing appellee testified she feared appellant would engage =
in=20
future violent conduct against her.
Appellee=3Ds=20
attorney, W. Tyler Moore, then testified regarding his legal =
fees. =20
Mr. Moore testified he has been licensed to practice law since =
1972 and is=20
certified as a specialist in both civil trial law and family law =
by the=20
Texas Board of Legal Specialization. He testified he is =
familiar=20
with fees customarily charged in Harris County, Texas in similar =
matters=20
and that his hourly rate is $295 and that, in his opinion, this is =
a fair=20
rate for an attorney of his expertise and experience. Mr. =
Moore then=20
testified his total legal fees incurred to that date were $2,500,=20
representing just over eight hours of work. According to Mr. =
Moore,=20
that eight hours of work included client conferences, preparation =
of=20
documents, filing the documents with the court, and three court=20
appearances. Mr. Moore then concluded by opining that the =
$2,500 is=20
a reasonable and necessary fee in this case. Appellant did =
not=20
cross-examine Mr. Moore.
Finally,=20
appellant himself testified. On direct, appellant testified =
he has=20
AADD@ =
and he=20
did not have access to his medication for that condition. On =
cross-examination, appellant admitted another woman had obtained a =
protective order against him in Oklahoma. During his =
testimony,=20
appellant did not deny that the incidents appellee described had =
occurred,=20
nor did he offer any testimony as to his financial ability to pay =
the=20
attorney=3Ds fees=20
sought by appellee.
Following=20
the testimony by appellee, appellee=3Ds counsel,=20
and appellant, the trial court granted the Final Protective Order =
and=20
awarded appellee $2,500 in attorney=3Ds=20
fees. This appeal followed.
Discussion
Appellant=20
brings four issues on appeal. In his first issue, appellant =
contends=20
the evidence supporting the ex parte temporary protective order is =
legally=20
and factually insufficient. In his second issue, appellant =
contends=20
the evidence supporting the final protective order is legally and=20
factually insufficient. In his third issue, appellant =
generally=20
contends the trial court did not protect his fundamental rights of =
due=20
process. Finally, in his fourth issue, appellant =
challenges=20
the legal sufficiency of the evidence supporting the award of=20
appellee=3Ds=20
attorney=3Ds=20
fees. We address appellant=3Ds issues=20
in order.
A. =20
Appellant=3Ds first=20
issue challenging the sufficiency of the evidence supporting the =
ex parte=20
temporary protective order is moot.
In a=20
recent memorandum opinion addressing this same issue, the Austin =
Court of=20
Appeals determined it did not have subject matter jurisdiction to =
resolve=20
complaints about a temporary protective order that had been =
superseded by=20
a final protective order. Erlewine v. Erlewine, no.=20
03-06-00308-CV, 2007 WL 2462042 *2 (Tex. App.CAustin=20
August 29, 2007, no pet.) (mem. op.). The Austin Court held =
that=20
because the order was labeled temporary, was no longer in effect, =
and had=20
been superceded by a final protective order, it was moot. =20
Id. We agree with the Austin Court. Because we =
do not=20
have subject matter jurisdiction to resolve a complaint about a =
superceded=20
temporary protective order, we overrule appellant=3Ds first=20
issue.
B. =20
The evidence supporting the final protective order is legally and=20
factually sufficient.
1. =20
The standard of review.
When both=20
legal and factual sufficiency challenges are raised on appeal, we =
must=20
first examine the legal sufficiency of the evidence. City =
of=20
Houston v. Cotton, 171 S.W.3d 541, 546 (Tex. App.CHouston=20
[14th Dist.] 2005, pet. denied). In conducting a legal =
sufficiency=20
review, we must consider the evidence in the light most favorable =
to the=20
appealed order and indulge every reasonable inference that =
supports it.=20
City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. =
2005);=20
Harris County v. Vernagallo, 181 S.W.3d 17, 24 (Tex.=20
App.CHouston=20
[14th Dist.] 2005, pet. denied); Prairie View A & M Univ. =
v.=20
Brooks, 180 S.W.3d 694, 705 (Tex. App.CHouston=20
[14th Dist.] 2005, no pet.). The evidence is legally =
sufficient if=20
it would enable reasonable and fair-minded people to reach the =
decision=20
under review. Keller, 168 S.W.3d at 827; =
Vernagallo,=20
181 S.W.3d at 24; Brooks, 180 S.W.3d at 705. This =
court must=20
credit favorable evidence if a reasonable trier of fact could, and =
disregard contrary evidence unless a reasonable trier of fact =
could not.=20
Keller, 168 S.W.3d at 827; Vernagallo, 181 =
S.W.3d at=20
24; Brooks, 180 S.W.3d at 705. The trier of fact is =
the sole=20
judge of the witnesses=3D =
credibility and the weight to be given their testimony. =20
Keller, 168 S.W.3d at 819; Vernagallo, 181 S.W.3d at =
24;=20
Brooks, 180 S.W.3d at 705.
This court=20
may sustain a legal sufficiency, or no evidence, point only if the =
record=20
reveals one of the following: (1) the complete absence of a vital =
fact;=20
(2) the court is barred by rules of law or of evidence from giving =
weight=20
to the only evidence offered to prove a vital fact; (3) the =
evidence=20
offered to prove a vital fact is no more than a scintilla; or (4) =
the=20
evidence established conclusively the opposite of the vital =
fact. =20
Keller, 168 S.W.3d at 810; Brooks, 180 S.W.3d at =
705. =20
When the evidence offered to prove a vital fact is so weak as to =
do no=20
more than create a mere surmise or suspicion of its existence, the =
evidence is less than a scintilla and, in legal effect, is no=20
evidence. See Ford Motor Co. v. Ridgway, 135 S.W.3d =
598, 601=20
(Tex. 2004).
In=20
reviewing factual sufficiency, we must examine the entire record,=20
considering both the evidence in favor of, and contrary to, the =
challenged=20
findings. See Maritime Overseas Corp. v. Ellis, 971 =
S.W.2d=20
402, 406B07 (Tex.=20
1998); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). =
We may=20
set aside the verdict for factual sufficiency only if it is so =
contrary to=20
the overwhelming weight of the evidence as to be clearly wrong and =
unjust.=20
See Ellis, 971 S.W.2d at 407; Nip v. Checkpoint =
Systems,=20
Inc., 154 S.W.3d 767, 769 (Tex. App.CHouston=20
[14th Dist.] 2004, no pet.). However, we may not substitute =
our=20
judgment for that of the trier of fact, even if the evidence would =
clearly=20
support a different result. Nip, 154 S.W.3d at=20
769.
2. =20
The evidence is legally and factually sufficient.
A trial=20
court shall render a protective order if, after a hearing, it =
finds that=20
family violence has occurred and is likely to occur in the =
future. =20
Tex. Fam. Code Ann.=20
'' =
81.001,=20
85.001 (Vernon 2002). AFamily=20
violence@ =
means
an act by a member =
of a=20
family or household against another member of the family or =
household that=20
is intended to result in physical harm, bodily injury, assault, or =
sexual=20
assault or that is a threat that reasonably places the member in =
fear of=20
imminent physical harm, bodily injury, assault, or sexual assault, =
but=20
does not include defensive measures to protect oneself.
Id. =
' =
71.004(1). A>Household=3D =
means a=20
unit composed of persons living together in the same dwelling, =
without=20
regard to whether they are related to each other.@ =20
Id. ' =
71.005. A A>dating=20
relationship=3D =
means a=20
relationship between individuals who have or have had a continuing =
relationship of a romantic or intimate nature.@ =20
Id. ' =
71.0021(b). In the Final Protective Order, the trial court =
found=20
that appellant and appellee were involved in a dating =
relationship. =20
In addition, the trial court found that appellant and appellee had =
been=20
residing together. Finally, the trial court found that =
family=20
violence had occurred, would likely occur in the future, and that=20
appellant had committed family violence.
Viewing=20
the evidence in the light most favorable to the trial =
court=3Ds order,=20
we hold appellee=3Ds=20
testimony, recounted above, provided more than a scintilla of =
evidence to=20
support the trial court=3Ds findings=20
and imposition of a protective order. Dempsey v. =
Dempsey, 227=20
S.W.3d 771, 777 (Tex. App.CEl Paso=20
2005, no pet.). Therefore, the evidence is legally=20
sufficient.
We turn=20
next to appellant=3Ds factual=20
sufficiency challenge. As already mentioned, appellee was =
the sole=20
witness testifying in support of her application. In =
addition, while=20
appellant testified during the hearing, he did not offer any =
testimony=20
controverting appellee=3Ds version=20
of the events. As the sole judge of the credibility of the=20
witnesses, the trial court was free to accept or reject=20
appellee=3Ds=20
uncontroverted testimony. Dempsey, 227 S.W.3d at =
777. =20
Because the evidence is not too weak to support the trial=20
court=3Ds findings=20
regarding family violence nor are the findings so against the =
overwhelming=20
weight of the evidence as to be clearly wrong or manifestly =
unjust, we=20
hold the evidence is factually sufficient. We overrule=20
appellant=3Ds second=20
issue.
C. =20
Appellant=3Ds due=20
process rights were not violated.
In his=20
third issue, appellant, without specifying a specific right, =
asserts his=20
due process rights were violated. Liberally construing his =
brief as=20
we must, we conclude appellant=3Ds third=20
issue contends his due process rights were violated in two ways: =
(1) when=20
the trial court allegedly refused to grant appellant a continuance =
in=20
order to obtain replacement counsel; and (2) when the trial court=20
allegedly deprived appellant of the opportunity to present=20
evidence.
1. =20
The trial court did not violate appellant=3Ds due=20
process rights when it proceeded to hold the protective order =
hearing=20
following the withdrawal of appellant=3Ds=20
counsel.
In his=20
brief, appellant admits he was served on August 17, 2007 with the=20
Temporary Ex Parte Protective Order, Application for Protective =
Order, and=20
a notice to appear for the protective order hearing scheduled for =
August=20
27, 2007. In response to that notice, appellant appeared =
with=20
counsel at the August 27, 2007 hearing and requested a continuance =
of the=20
hearing, which the trial court granted. The trial court =
continued=20
the hearing until August 31, 2007. Appellant, =
along with=20
his attorney, appeared again on August 31, 2007. At that =
point,=20
appellant=3Ds attorney=20
filed a motion to withdraw as appellant=3Ds=20
counsel. The trial court asked appellant if he objected to =
his=20
attorney withdrawing and appellant informed the trial court he did =
not. The trial court then granted the attorney=3Ds motion=20
to withdraw. The trial court then proceeded with the =
protective=20
order hearing and appellant did not object to the hearing taking=20
place. During the hearing, appellant made rambling comments =
that he=20
wanted to obtain counsel for the hearing.
Assuming=20
without deciding appellant made a proper request for a continuance =
in=20
order to obtain replacement counsel, and the trial court erred by =
not=20
granting appellant=3Ds request,=20
appellant, in his brief to this court, has not shown how such a =
failure by=20
the trial court resulted in the rendition of an improper judgment =
in the=20
case. Tex. R. App. P. 44.1(a); see In re A.R., 236 =
S.W.3d=20
460, 476 (Tex. App.CDallas=20
2007, orig. proceeding) (stating, in a child custody modification =
case, to=20
succeed on appeal an appellant must show how the failure to grant =
a=20
continuance for additional time to retain counsel probably caused =
the=20
rendition of an improper judgment). Therefore, we overrule =
the first=20
part of appellant=3Ds third=20
issue.
2. =20
The trial court did not deprive appellant of the opportunity to =
present=20
evidence.
Appellant=20
next complains the trial court denied him the opportunity to =
present=20
evidence. We disagree.
General=20
principles of due process dictate that a litigant has a right to =
be heard=20
and that a court must protect that right. Streidel v.=20
Streidel, 15 S.W.3d 163, 166 (Tex. App.CCorpus=20
Christi 2000, no pet.). The opportunity to be heard and =
present=20
evidence must generally amount to more than a cursory opportunity =
to=20
cross-examine the other party=3Ds=20
witnesses. Id. However, that right is not =
unlimited as=20
a trial court has the discretion to impose reasonable limits on=20
cross-examination based upon concerns about harassment, prejudice, =
confusion of the issues, and marginally relevant =
interrogation. =20
Mercer v. State, 13-07-00412-CV, 2008 WL 2930290 *3 (Tex.=20
App.CCorpus=20
Christi July 31, 2008, no pet.) (mem. op.).
In a=20
hearing on a family violence protective order the only relevant =
issues are=20
whether family violence has occurred and whether it is likely to =
occur in=20
the future. Id. (citing Tex. Fam. Code Ann. =
' =
85.001). Because a trial court has the discretion to limit=20
irrelevant questions on cross-examination, it logically follows =
that a=20
trial court in a family violence protective order hearing may =
limit=20
cross-examination if the questions asked are not relevant to =
whether=20
family violence has occurred in the past or is likely to occur in =
the=20
future. Id. In this case, appellant had the =
opportunity=20
to confront and cross-examine appellee, the applicant for =
protective=20
order, regarding the alleged family violence as well as=20
appellee=3Ds=20
veracity. While the trial court did limit =
appellant=3Ds=20
cross-examination regarding threats allegedly made against him by=20
acquaintances of appellee, because the questions had nothing to do =
with=20
whether family violence had occurred in the past or is likely to =
occur in=20
the future, this action was within the trial court=3Ds=20
discretion to limit irrelevant questions on =
cross-examination. =20
Id.
Appellant=20
also contends the trial court violated his due process rights =
because he=20
claims he was unable to fully question appellee regarding her =
history of=20
allegedly making false accusations against him. According to =
appellant, appellee had denied appellant access to documents =
relevant to=20
this claim. However, through appellant=3Ds=20
cross-examination of appellee, the trial court learned that =
while=20
appellee had placed appellant=3Ds property=20
left at her residence in a storage facility, she had paid the =
first=20
month=3Ds rent,=20
and gave appellant the key with the responsibility to continue =
paying the=20
rent. This testimony by appellee demonstrates that not only =
did=20
appellant have the opportunity to question appellee about the =
supposedly=20
hidden documents, but it also established that appellant, not =
appellee,=20
had control over the allegedly missing documents. Appellant =
also had=20
the opportunity to ask appellee if she had ever made false =
accusations of=20
family violence against him. Appellee denied that she had =
ever made=20
false accusations against appellant.
During the=20
protective order hearing, appellant had the opportunity to =
cross-examine=20
appellee=3Ds counsel=20
on the issue of attorney=3Ds fees,=20
but declined the opportunity. Finally, appellant testified =
on his=20
own behalf. We hold appellant had a constitutionally =
adequate=20
opportunity to confront and cross-examine appellee and to present =
evidence=20
and therefore the trial court did not violate his due process =
right to be=20
heard. See Streidel, 15 S.W.3d at 166 (holding =
the=20
trial court violated the respondent=3Ds due=20
process rights when it completely denied him the opportunity to =
present=20
any evidence during the protective order hearing).
Because we=20
have determined both arguments made by appellant under his third =
issue are=20
without merit, we overrule his third issue.
D. =20
The evidence supporting the trial court=3Ds award of=20
attorney=3Ds fees is=20
legally sufficient.
In his=20
final issue, appellant, citing section 81.005(b) of the Texas =
Family=20
Code,=20
contends the trial court had to consider his ability to pay the =
assessed=20
attorney=3Ds fees=20
and there was no evidence in the record appellant had the =
ability to=20
pay the assessed attorney=3Ds=20
fees. Appellant also argues that since the Family Code =
provides that=20
the county attorney or district attorney is responsible for filing =
applications for protective orders, the award of =
attorney=3Ds fees=20
must be reversed because there was no evidence on the necessity of =
the=20
services.
While it=20
is true section 81.007(a) of the Texas Family Code provides that =
the=20
county attorney or the criminal district attorney is the =
prosecuting=20
attorney responsible for filing applications for a protective =
order,=20
sections 81.005(a) and 81.006(1) both authorize the award and =
payment of=20
attorney=3Ds fees to=20
a privately employed attorney. Tex. Fam. Code Ann. =
'' =
81.005(a)=20
& 81.006(1). Therefore, we hold the Family Code, while=20
authorizing a county attorney or criminal district attorney to =
file an=20
application for protective order, it also permits an applicant to =
retain a=20
private attorney if they choose and the applicant may then seek =
the=20
assessment of reasonable attorney=3Ds fees=20
against the respondent. Id., see In re S. S., 217 =
S.W.3d 685,=20
686 (Tex. App.CEastland=20
2007, no pet.).
Appellant=20
also contends the evidence is legally insufficient to support the =
award of=20
attorney=3Ds fees=20
because there was Ano=20
evidence that [appellant] had any income or ability to pay the fee =
that=20
was assessed as is required by the code.@ =20
While it is true there is no evidence to be found in the record as =
to=20
appellant=3Ds ability=20
to pay the assessed attorney=3Ds fees, we=20
disagree this makes the evidence supporting the award legally=20
insufficient.
Under=20
section 81.005(a) a court may assess reasonable =
attorney=3Ds fees=20
against a party found to have committed family violence. =
Tex. Fam.=20
Code Ann. ' =
81.005(a). In addition, under section 81.005(b), the trial =
court,=20
when determining the amount of attorney=3Ds fees to=20
be assessed, is required to consider the respondent=3Ds ability=20
to pay. Id. at ' =
81.005(b). We believe this statutory language creates =
a=20
divided burden of proof on the issue of the amount of =
attorney=3Ds fees to=20
be assessed in a family violence protective order case. =
Appellee, as=20
the applicant for a family violence protective order that includes =
a=20
request for attorney=3Ds fees,=20
had the initial burden to ask for and then put forward competent =
evidence=20
proving she incurred reasonable attorney=3Ds fees as=20
a result of applying for and prosecuting her application for a =
protective=20
order. Id. at ' =
81.005(a). Then, pursuant to section 81.005(b), =
appellant had=20
to come forward, not with evidence contesting the amount of=20
attorney=3Ds fees=20
incurred by appellee or even denying the reasonableness of those =
fees, but=20
with evidence addressing his ability to pay the =
attorney=3Ds fees=20
sought by appellee. Because appellant=3Ds burden=20
under section 81.005(b) is not to deny the fees incurred by =
appellee, but=20
to avoid being assessed some or all of those fees because of an=20
independent reason, his inability to pay, we hold the burden is in =
the=20
nature of an affirmative defense. See In re C. M., =
996 S.W.2d=20
269, 270 (Tex. App.CHouston=20
[1st Dist.] 1999, no pet.)(describing an affirmative defense as a =
defense=20
that seeks to establish an independent reason that a plaintiff =
should not=20
recover and is therefore a defense of avoidance, rather than a =
defense of=20
denial). This division of the burden of proof also makes =
logical=20
sense because it imposes the burden of proof on the party with the =
best=20
access to the required information. Therefore, we hold =
appellant had=20
the burden to come forward with evidence on that subject if he =
wanted the=20
trial court to consider his ability to pay any assessment of=20
attorney=3Ds=20
fees.
In support=20
of the assessment of attorney=3Ds fees=20
against appellant, Mr. Moore, appellee=3Ds=20
attorney, testified as detailed above regarding the amount of=20
attorney=3Ds fees=20
incurred and that, in his opinion, said amount was reasonable and=20
necessary. Appellant offered no controverting evidence and =
did not=20
cross-examine Mr. Moore. Appellant also failed to offer any =
evidence=20
as to his ability to pay an assessment of attorney=3Ds=20
fees. Therefore, we hold the evidence is legally sufficient =
to=20
support the trial court=3Ds=20
assessment of $2,500 in attorney=3Ds fees=20
against appellant. We overrule appellant=3Ds fourth=20
and final issue.
Conclusion
Having=20
overruled all of appellant=3Ds issues=20
on appeal, we affirm the final protective order.
/s/ =20
John S. Anderson
Justice
Panel=20
consists of Chief Justice Hedges and Justices Anderson and=20
Seymore.
Section 81.005(b) provides: =
AIn setting the amount of =
attorney=3Ds fees, the court shall consider the =
income and=20
ability to pay of the person against whom the fee is =
assessed.@ Tex. Fam. Code Ann. ' 81.005(b) (Vernon =
2008).
Section 81.007(a) of the Texas =
Family Code=20
provides: AThe county attorney or the criminal =
district=20
attorney is the prosecuting attorney responsible for filing =
applications=20
under this subtitle unless the district attorney assumes the=20
responsibility by giving notice of that assumption to the county=20
attorney.@ Tex. Fam. Code Ann. '=20
81.007(a). |