Opinion issued December 10, 2020

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-19-00348-CV

———————————

CARL EMANUEL LEWIS, Appellant

V.

BRIDNEY YANCY, Appellee

On Appeal from the 280th District Court

Harris County, Texas

Trial Court Case No. 2019-15182

MEMORANDUM OPINION

This is an appeal from a protective order granted by the trial court against 

appellant, Carl Emanuel Lewis. In four issues, Lewis complains that (1) the 

evidence is legally and factually insufficient to support issuance of the protective 

order; (2) the protective order exceeds the time limitation under Texas Family Code 
2

section 85.025 and conflicts with temporary orders issued by another court of 

concurrent jurisdiction; (3) the trial court conducted an evidentiary hearing related 

to issues previously decided by another court of concurrent jurisdiction and,

therefore, the presentation of evidence was barred by res judicata; (4) certain 

provisions of the protective order are inconsistent and render the order void. We 

affirm in part and reverse and remand in part.

Background

Lewis and appellee, Bridney Yancy, were in a dating relationship for seven 

years. Yancy began living with Lewis after their son, C.L., was born in 2014.

On January 15, 2019, Yancy filed an original petition in a suit affecting the 

parent-child relationship (“SAPCR”). On February 6, 2019, the 311th District Court 

of Harris County, Texas, signed an agreed band-aid order setting forth the parents’ 

possession schedule and related matters. The record does not contain a copy of the 

original petition or the trial court’s temporary orders in the SAPCR.

On February 28, 2019, Yancy filed an application for protective order against 

Lewis, to which she attached her affidavit in support of the application. On March 

11, 2019, Lewis filed an answer to the application for protective order. On March 

12, 2019, the trial court began a three-day bench trial on Yancy’s application for 

protective order.
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At the hearing, Yancy testified that Lewis was violent on numerous occasions 

during the course of their relationship. The first incident occurred in mid-2015 when 

Lewis began “getting in [her] face” and yelling at her. Yancy testified that Lewis 

hovered over her as she repeatedly tried to get out of his way. When Lewis began 

making a fist, Yancy pleaded with him not to hit her. Lewis responded, “I do 

whatever I want in the house that I have paid for.” Yancy testified that Lewis 

grabbed her by the arm, leaving a bruise.

The next incident occurred in December 2015. Yancy testified that Lewis got 

in her face again and hovered over her, pushing his body against her. Yancy testified 

that she felt scared.

On December 21, 2015, Lewis became upset with Yancy because she had not 

done anything around the house. Lewis threw dishes, picture frames, and glasses 

and told Yancy to get out of the house. C.L. was in the room at the time and 

witnessed the incident. Yancy tried to pick C.L. up so that he would not get cut by 

the glass, but Lewis would not let her touch him. Yancy testified that when she told 

Lewis that she would not leave without C.L., Lewis threatened to shoot her. Yancy 

recorded the incident on her phone and later transcribed it. The trial court admitted 

a flash drive of the audio recording and the written transcript into evidence. In the 

audio, Lewis can be heard telling Yancy that he was going to “make this trip to [his] 

effing car” and that Yancy should “be at [the house] when [he] gets back.” Yancy 
4

testified that Lewis intended to get his gun from the car and come back to shoot her. 

She testified that she was scared for her life and began crying. When Lewis left the 

house, Yancy called the police. The police report was admitted into evidence. Lewis 

told Yancy that he would kill her if she called the police again.

In 2016, Lewis returned home from work one day and started yelling because 

“the house wasn’t the way he wanted it to be.” C.L. was playing with his toys on 

the floor. When Yancy began picking up the toys, Lewis approached her and slapped 

a toy out of her hand. C.L. began crying and put his hands over his ears. Yancy 

testified that when she told Lewis not to do that in front of C.L., Lewis told Yancy 

that he would teach C.L. to not be with someone like her.

In September 2017, Yancy’s best friend, Kimberly Williams, came over to the 

house one morning so that they could do one another’s make-up before going to 

work together at Olive Garden. While they were in the bathroom getting ready, 

Lewis knocked on the door to use the restroom. When Lewis saw Williams, he 

became angry and began yelling at Yancy. As Yancy tried to walk away, Lewis 

grabbed her and pushed her to the floor. Lewis began throwing Yancy’s clothes and 

shoes and told her to get out of the house. C.L. woke up and Williams took him to 

the living room so that he would not witness the incident. Lewis eventually left the 

house with C.L. Yancy testified that she bruised her leg in the fall. A photo of her

bruise was admitted into evidence.
5

In May 2018, Lewis became angry with Yancy and started yelling at her and 

pushing up against her. When Yancy asked Lewis to stop doing that in front of C.L., 

Lewis responded that he would teach C.L. to hate her. When Yancy tried to pick

C.L. up, Lewis took the child and told Yancy not to touch his son. Later that day, 

Lewis sent Yancy the following text message: “D[on’t] be stupid and try to take my 

son, sh[i]t gone play out totally different this time[.]” The text message was admitted 

into evidence.

When asked whether there were incidents involving a gun, Yancy testified 

about one occasion when Lewis began arguing with another driver while they were 

driving home with C.L. When Yancy asked him not to engage with the other driver 

because “people are crazy nowadays,” Lewis pulled his gun out, began waving it 

around, and said, “Well, I have a gun and they ain’t going to do shit to me.” When 

Yancy told him “that’s nonsense,” Lewis began hitting her and pushed her out of the 

car. Lewis returned about ten minutes later to pick her up.

In late 2018, Lewis became upset with Yancy because he thought she had 

misplaced something and began cursing at her. Yancy testified that Lewis pushed 

her against a wall and told her to get out. When Yancy said that she would not leave 

without C.L., Lewis replied, “that’s allright, bitch. I got something for your bitch 

ass,” and he went to his room where he kept a loaded gun. Yancy began crying and 
6

Lewis called Yancy’s brother to come get her. Yancy eventually left and went to 

work.

In 2019, after Lewis and Yancy were evicted from their home, Yancy went to 

live with her mother. During this time, Lewis and Yancy shared in C.L.’s care and 

watched him while the other one worked. In January 2019, Lewis called Yancy at 

work after C.L.’s food stamp card did not work at the grocery store. He became 

angry and told her that he knew she was trying to take his son from him, he knew 

where her mother lived, and that he would come kill her.

Yancy testified that she decided to seek a protective order because she feared 

that Lewis would retaliate against her if she were awarded custody of C.L., and she 

wanted to protect C.L. from witnessing Lewis’s abuse in the future. Yancy testified 

that she has never committed family violence against Lewis.

Casey Bachus, a service manager at Olive Garden, testified that a man who 

identified himself as Yancy’s brother called the restaurant in January 2019 and asked 

to speak to Yancy. When Yancy took the call, Bachus heard the man yelling and 

tell Yancy that he was going to shoot her. Bachus testified that Yancy’s “eyes got 

wide and she looked terrified,” and she asked Bachus to let her leave early to avoid 

Lewis. Bachus testified that Yancy had previously shown him a picture of her 

bruised leg and told Bachus that Lewis had guns and would find her and shoot her. 
7

Bachus stated that Yancy left with two other employees because she did not want to 

leave by herself.

Kimberly Williams testified about the incident that occurred when she went 

to Yancy’s house in 2017. After Lewis came out of the bathroom and saw Williams, 

he asked Yancy why she had people over to the house without telling him, and he 

told her that she did not do anything around the house or pay for anything. Williams 

testified that when Yancy began walking away, Lewis grabbed her by the arm and 

threw her to the bedroom floor, calling her “stupid bitch.” When Yancy tried to get 

up, Lewis blocked her and kept bumping against her. William testified that C.L. 

woke up and started crying. Lewis told Yancy to get out of his house and began 

throwing her belongings out of the closet. Williams took C.L. outside to calm him 

down. After Lewis took C.L. and left the house, Williams found Yancy crying in

the closet. Williams testified that she witnessed Lewis verbally abusing Yancy on 

multiple occasions.

Deshonder Harrison, Yancy’s mother, testified about a road rage incident that 

occurred two or three years earlier. Lewis was driving and Yancy, C.L., Harrison, 

and Harrison’s niece were passengers when another driver got too close to their car 

while trying to change lanes. Lewis began cursing at the driver and the driver rolled 

down his car window. Harrison testified that Lewis said, “don’t have me [] get my 

bag out and [] pull my gun out.” When Yancy told Lewis not to do that, Lewis told 
8

her to shut up. Lewis later apologized to Harrison and acknowledged that he had an

anger management problem and needed to get help. Harrison testified that Yancy

was extremely scared of Lewis, and that Yancy told her that Lewis threatened to 

shoot her if she ever tried to take C.L.

Steven James Pipkin lived with Lewis and Yancy for approximately six 

months in 2016. Pipkin testified that one evening while he was watching television,

he heard Lewis and Yancy arguing about Yancy not cleaning the house or not 

properly feeding C.L. When Pipkin walked out of his room, he saw Yancy holding 

a knife and then quickly put it on the kitchen counter. At Lewis’s request, Pipkin 

took C.L. into his room. Pipkin later called the police.

Lewis testified that, other than the December 21, 2015 incident recorded by

Yancy, none of the other alleged incidents occurred. He testified that he never 

threatened Yancy, but Yancy was violent with him on several occasions. He testified 

that on one occasion when C.L. was a couple of months old, he and Yancy were 

having a disagreement and Yancy threw a lamp at him while he was holding C.L. 

In May 2016, Lewis came home and became upset when he discovered that Yancy 

had drunk a wine cooler while taking care of C.L. Lewis testified that Yancy once 

pulled a knife on him, and, on another occasion, Yancy punched him in the face 

while he was holding C.L. Lewis testified that there is no possibility of his harming 

Yancy in the future because they currently only communicate about C.L.
9

Corliss Lewis, Lewis’s mother, testified that she never saw her son become 

violent but that she has seen him get angry if the house is dirty. She testified that 

police called her to Lewis and Yancy’s home in May 2016 after Yancy pulled a knife 

on Lewis.

On April 25, 2019, the trial court signed a protective order, which stated, in 

part, as follows:

Findings

The Court finds that the parties were in a dating relationship or

former members of same household or are family members.

The Court finds that family violence has occurred, and that 

family violence is likely to occur in the future. The Court finds that 

Respondent, CARL EMMANUEL LEWIS, has committed family 

violence. The Court finds that the following protective orders are for 

the safety and welfare and in the best interest of [Yancy] and other 

members of the family and are necessary for prevention of family 

violence.

This appeal followed.

Sufficiency of the Evidence

In his first issue, Lewis contends that the trial court erred because the evidence 

is legally and factually insufficient to support issuance of a protective order.

A. Standards 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. 
10

2000)). When a party who does not have the burden of proof at trial challenges the 

legal sufficiency of the evidence, we consider all of 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 mere scintilla of evidence exists, it is legally sufficient and 

we will overrule that 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 factual sufficiency, we examine the entire record in order to 

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). We cannot substitute our opinion for that of the 
11

trier of fact merely because we might reach a different conclusion. Boyd, 425 

S.W.3d at 429. The trier of fact remains the sole judge of the credibility of the 

witnesses and the weight to be given their testimony. Id. at 431.

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).

In addition to acts intending physical harm, threats that reasonably place the 

victim in fear of imminent harm constitute family violence. See, e.g., Boyd, 425 

S.W.3d at 430–31 (concluding that appellant committed act of family violence when 

he blocked appellee’s car with his body and jumped on hood of car); Clements v. 

Haskovec, 251 S.W.3d 79, 85–86 (Tex. App.—Corpus Christi 2008, no pet.) 
12

(concluding that appellant committed act of family violence by raising his fist and 

making other threats though he never actually 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, 543–44 

(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

The evidence, viewed in the light most favorable to the trial court’s finding, 

shows that Lewis was verbally and physically abusive to Yancy on numerous 

occasions, and that C.L. often witnessed these incidents. In 2015, Lewis grabbed 

Yancy by her arm, leaving a bruise. Later that year, Lewis threw dishes, picture 

frames, and glasses, and told Yancy to get out of the house. When Yancy told Lewis 

that she would not leave without C.L., Lewis threatened to shoot her. Lewis also 

told Yancy that he would kill her if she called the police again.
13

In 2017, Lewis became angry after discovering that Yancy had invited her 

friend to the house. When Yancy tried to walk away, Lewis grabbed her and pushed 

her to the floor, causing Yancy to bruise her leg in the fall. 

In 2018, Lewis became angry with Yancy and started yelling at her and 

pushing up against her. Later that day, Lewis sent Yancy the following text message: 

“D[on’t] be stupid and try to take my son, sh[i]t gone play out totally different this 

time[.]” On another occasion, Lewis exhibited road rage toward another driver while 

he and Yancy were driving home with C.L. When Yancy asked him not to engage 

with the other driver, Lewis pulled his gun out, began waving it around, and said, 

Well, I have a gun and they ain’t going to do shit to me.” When Yancy told him 

“that’s nonsense,” Lewis began hitting her and pushed her out of the car. Later that 

year, Lewis became upset with Yancy because he thought she had misplaced 

something and pushed her against a wall and told her to get out. When Yancy said 

that she would not leave without C.L., Lewis replied, “that’s allright, bitch. I got 

something for your bitch ass,” and he went to his room where he kept a loaded gun. 

In 2019, Lewis called Yancy at work after C.L.’s food stamp card did not 

work at the grocery store. He became angry and told her that he knew she was trying 

to take his son from him, he knew where her mother lived, and that he would come 

kill her.
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These incidents, along with Yancy’s testimony about her fearfulness of Lewis 

as well as Bachus’s and Harrison’s testimony that Yancy was frightened of Lewis, 

provide legally sufficient evidence supporting the trial court’s finding that Lewis 

committed “an act . . . that [was] intended to result in physical harm, bodily injury

[or] assault . . . or that [was] a threat that reasonably place[d Yancy] in fear of 

imminent physical harm, bodily injury, [or] assault,” and thus satisfied the definition 

of “family violence.” See TEX. FAM. CODE § 71.004(1).

The evidence was also factually sufficient to support the trial court’s finding 

that family violence occurred. As the factfinder, the trial court was the sole judge of 

the credibility of the witnesses and the weight to be given their testimony. See Boyd,

425 S. W.3d at 431; see also Pena v. Garza, 61 S.W.3d 529, 532 (Tex. App.—San 

Antonio 2001, no pet.) (noting trial court is free to reject or accept all or part of 

witness’s testimony). Here, the trial judge heard the witnesses testify during the 

hearing and was free to believe Yancy’s testimony regarding the abuse and to 

disbelieve Lewis’s efforts to discredit that testimony. See Boyd, 425 S.W.3d at 431

(holding trial court was free to place greater weight on applicant’s testimony when 

making family violence finding). 

Lewis contends that even if the evidence is sufficient to show that family 

violence occurred, the evidence is insufficient to show a likelihood that violence will 

occur in the future. In support of his contention, Lewis points to evidence showing 
15

that he and Yancy ceased to live together in December 2018, Lewis has not been 

violent with her since the separation, and no words have been exchanged since the 

band-aid order was issued.

Courts have observed that “[o]ftentimes, past is prologue; therefore, past 

violent conduct can be competent evidence which is legally and factually sufficient 

to sustain the award of a protective order.” In re Epperson, 213 S.W.3d at 544 (citing 

In re T.L.S., 170 S.W.3d 164 (Tex. App.—Waco 2005, no pet.)). The trial court 

heard evidence of Lewis’s physical abuse of Yancy as well as his repeated threats 

and intimidation of her throughout their relationship. The evidence also showed that 

Lewis threatened Yancy on numerous occasions when he believed that Yancy was 

going to take C.L. from him, and Yancy testified that she feared Lewis would 

retaliate against her if she were awarded custody of C.L. The evidence is legally and 

factually sufficient to support the trial court’s finding that Lewis would likely 

commit family violence in the future. See Teel, 309 S.W.3d at 604 (“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 at

543–44 (concluding past and continuing pattern of behavior showed applicant was 

reasonable in fearing respondent would commit acts of “family violence” in future).

Lewis also argues that the protective order violates his due process rights 

because it potentially infringes on his Second Amendment right to possess a firearm 
16

without the benefit of a jury trial. A review of the record reveals that Lewis did not 

raise his due process argument in the trial court. Therefore, he has failed to preserve 

that issue for our review. See TEX. R. APP. P. 33.1; Webb v. Schlagal, 530 S.W.3d 

793, 806 (Tex. App.—Eastland 2017, pet, denied) (concluding ex-husband failed to 

preserve due process claim on appeal where he did not raise it at trial) (citing Dreyer

v. Greene, 871 S.W.2d 697, 698 (Tex. 1993) (“As a rule, a claim, including a 

constitutional claim, must have been asserted in the trial court in order to be raised 

on appeal.”).

We overrule Lewis’s first issue.

Duration of Protective Order

In his second issue, Lewis contends that the protective order exceeds the time 

limitations under Texas Family Code section 85.025, and it conflicts with the 

temporary orders issued by a court of concurrent jurisdiction. Specifically, Lewis 

complains about the following language: “This order shall continue in full force and 

effect for the life of the Applicant BRIDNEY YANCY and until the child reaches 

the age of 18 unless otherwise modified later by this Court upon good cause shown.”

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 
17

85.0025(a-1), however, states that the duration of a protective order may exceed two 

years under certain circumstances:

(a-1) 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.

TEX. FAM. CODE § 85.025(a-1). Yancy argues that the acts that Lewis committed 

against her constitute felony offenses under subsections (1) and (2) and, thus, the 

trial court was authorized to extend the protective order beyond two years. 

Section 85.001(d) provides that if a court renders a protective order for a 

period of more than two years, the court must include in the order a finding described 

by Section 85.025(a-1). TEX. FAM. CODE ANN. § 85.001(d). In his brief, Lewis 
18

asserts that the trial court made no specific findings in the order which would justify 

a lifetime protective order, and that the trial court did not issue any findings of fact 

or conclusions of law. We agree. In its order, the trial court found that “the parties 

were in a dating relationship or former members of same household or are family 

members,” “family violence has occurred, and that family violence is likely to occur 

in the future,” Lewis “has committed family violence,” and “the [] protective orders 

are for the safety and welfare and in the best interest of [Yancy] and other members 

of the family and are necessary for prevention of family violence.” The protective 

order does not contain any of the required findings of section 85.025(a-1) to support 

a term of more than two years. See TEX. FAM. CODE § 85.001(d). Accordingly, we 

sustain Lewis’s second issue.

Evidentiary Hearing

In his third issue, Lewis contends that the trial court erred in conducting an 

evidentiary hearing regarding factual allegations underlying the protective order 

because another court had already made factual findings that were binding on the 

trial court under the doctrine of res judicata.

“Res judicata, also known as claim preclusion, prevents the relitigation of a 

finally adjudicated claim and related matters that should have been litigated in a prior 

suit.” State & Cty. Mut. Fire Ins. Co. v. Miller, 52 S.W.3d 693, 696 (Tex. 2001). 

Res judicata is an affirmative defense that must be pleaded. TEX. R. CIV. P. 94; 
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Whallon v. City of Hous., 462 S.W.3d 146, 155 (Tex. App.—Houston [1st Dist.] 

2015, pet. denied); 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”). Here, 

the affirmative defense of res judicata was neither pleaded nor raised in the trial 

court. Because it was waived at the trial court, Lewis may not raise it for the first 

time on appeal. See Whallon, 462 S.W.3d at 155.

1

 

We overrule Lewis’s third issue.

Inconsistencies in Protective Order

In his fourth issue, Lewis complains that two provisions in the protective order 

are contradictory so as to render the order void. Specifically, Lewis notes that the 

order names C.L. as a “protected person” and prohibits Lewis from, among other 

things, “going to or near, or within 400 feet of, any location” of a protected person. 

Lewis argues that this provision conflicts with the provision for his access to and 

possession of C.L., which states that “the pickup and drop off of the child shall be

done in a public location where there are operational security cameras and a 

1 We further note that the record before us does not contain a copy of the 311th district 

court’s temporary orders in the SAPCR. Although Lewis included a copy of 

unsigned temporary orders in the appendix to his brief, “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.). 
20

nonparent shall exchange the child. Neither parent is to get out of their car for the 

exchange.”

2

“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 lifetime 

prohibition of contact with C.L. effectively terminates Lewis’s rights with respect to 

his possession of and access to C.L. while simultaneously providing for his 

possession of and access to C.L. 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. Accordingly, we sustain 

Lewis’s fourth issue to the extent that we conclude the trial court erred by issuing an

order prohibiting Lewis from being within 400 feet of C.L. and also providing for 

his possession of and access to C.L. without indicating how those provisions should 

be reconciled. See Copeland v. Copeland, No. 05-18-01431-CV, 2020 WL 

4047969, at *8 (Tex. App.—Dallas July 20, 2020, no pet.) (mem. op.) (concluding 

2 Lewis also complains that the provisions of the protective order conflict with 

provisions of the standard possession order issued by the 311th district court. As 

previously noted, the order of the 311th district court is not part of the record and, 

therefore, cannot be considered by this Court. See id.
21

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).

Conclusion

We reverse the portions of the trial court’s order that extend the effective 

period of the order beyond two years and that prohibit Lewis from being within 400 

feet of C.L. but also provide for Lewis’s possession of and access to C.L. and remand 

this case to the trial court for further proceedings consistent with this opinion. In all 

other respects, we affirm the trial court’s order.

Russell Lloyd

Justice 

Panel consists of Chief Justice Radack and Justices Lloyd and Countiss.