Opinion issued December 10, 2020

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01
- 19
- 00348
- CV

——————————— CARL EMANUEL LEWIS , Appella nt

V. BRIDNEY YANCY , Appell e e
On Appeal from the 280th District Court

Harris County, Texas Trial Court Ca se No. 2019
- 15182



### MEMORANDUM OPINION This is an appeal from a protective order granted by the trial court against appellant, Carl Emanuel Lewis. In f our 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 Code2

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

concurr ent jurisdicti on; (3) the trial court conducted an evidentiary hearing related to issues previously decided by another court of concurrent jurisdiction and , therefor e , the presentation of evidence was barred by res judicata; (4) certain provisions of the protective orde r 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 s uit affecting the
p arent

- c hild r elationship (“SAPCR”). On February 6, 2019, the 311 th District Court of Harris County, Texas, signed an agreed b and

- a id o rder setting forth the paren ts’ possession schedule and related matters. The record does not contain a copy of the original petition or the trial court’s temporary order s 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.3

At the hearing , Yancy testified that Lewis was violent on numerous occasions during the course of their re lationship

. The first incident occurred in mid

- 2015 when Lewis began “getting in [ her ] face” and yelling at her. Yancy testified that Lewis hover ed ove r 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, lea ving a br uise. 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 bec ause she had not done anything around the house. Lewis thr e w 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 t he 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, Lew is 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.” Yancy4

testified that Lewis intended to get his gun f rom the car and come back to shoot her. She testifi ed 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.
I n 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 fro nt 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 an other’s make

- up before going to work together a t 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 b ruised 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 yell ing 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 Ya nc y 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 aske d whether there were incidents involving a gun, Yancy testified about one occasion when Lewis began arguing with another d river while they w ere 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 go i ng to do shit to me.” W hen Yancy told him “that’s nonsense,” Lewis began hitting her and pushed her out of the

car. Lewis retu r ned about ten minutes later to pick her up.
In late 2018, Lewis be came upset with Yancy because he though t 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 with out C.L., Lewis replied, “ that’s allright, bitch. I got something for your b itch ass,” and he went to his room where he kept a loaded gun . Yancy began crying and6

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 s hared in C.L.’s care and
wat ched 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 re taliate 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 testif i ed 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 Ja nuary 2019 and asked to speak to Yancy

. When Ya ncy took the call, Bachus hear d the man ye lling and tell Yancy that he was going to shoot her. Bach us testifie d 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 Y an cy 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 Y ancy left with two other empl oy ees because she did not want to leave by herself. Kimberly Williams testified about the incident that occurred when she we nt
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
t old her that she did not do anything aro und the house or pay for anything

. Williams testified that w hen Yancy began walk ing away , L ewis grabbed her by the arm and threw her to the bedroom floor , calling her “stupid bitch.” When Y ancy tried to get up, Lewis blocked her and kept bumping against her. William testified that C.L. wok e up and started crying

. Lewis told Yancy to get out of his house and began throwing her bel o ngings 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 . W illiams testified that she witnessed Lewis verbally abusing Yancy on multiple occasions. Deshonder Harrison, Yancy’s mother, testifie d 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 the ir car while trying to change lanes. Lewis began cursing at the driver and the driver rolled down his car wi n dow

. Harrison testified that Lewis said , “don’t have me [] get my bag out and [] pull my gun out.” When Y ancy told Lewis not to do that, Lewis told8

her to shut up. Lewis later apologize d to Harrison and acknowledged that he had a n anger management problem and needed to get help. Harrison testi fied that Ya ncy 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 w as watching television , he heard Lewis and Yancy arguing about Yancy not cleaning the house or not
p roperly feeding C.L. When Pipkin walked out of his room, he saw Ya ncy 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 t he 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 w hen C.L. was a couple of months old, he and Yancy were having a disagreemen t and Y ancy threw a lamp at him while he was holding C.L. In May 2016, Lewis came home and b ecame 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 ha rm i n g Yancy in the future because the y currently only communicate about C.L

.9

Corliss Lewis, Lewis’s mother , testified that she never s aw her son become violent but that she has seen hi m get angry if the house is d irty. She testified that police called her to Lewis and Yancy’s home in M ay 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 lik el y to occur in the future. The Court finds that Respondent , CARL EM M ANUEL LEWIS, has committed family violence. The Court finds that the following protective orders are for the safety and welf are and in the best interest of [ Y ancy] and other members of the famil y and are n e cessa r y 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. Standard s of Review When the trial court acts as a factfinder, we review its findings unde r 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 t he 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 no t. 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 m ore 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 a nd 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 the11

trier of fact merel y 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.
T EX
. F AM
. C ODE §§ 81.001, 85.001. “ Family violence” is defined, in pertinent part,

as : [A]n act by a member of a famil y 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 violen ce. 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 pe t.)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 i n 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 t hat 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 reas onable 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. I n 2015, Lewis grabbed Yancy by her arm , leaving a bruise. Later that year, Lewis t hr ew dishes , picture frames , and glasses , and told Yancy to get out of the house . When Yancy t old 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 discoverin g that Yancy had invited her friend to the house . When Y an cy tried to walk away, Lewis grabbed her and pushed her to the floor , causing Yancy to bruise her leg in the fall.
In 2 018, 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 s hit 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 with out 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.14

These incidents, along with Yancy’s testimony about her fearfulnes s of Lewis as well as Bachus’s and Harrison’s te stimony that Yancy was frightened of Lewis , provide legally sufficient evidence supporting the trial court ’ s finding that Lewis committed “ a n 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, ” a nd thus satisf ied the definition of “family violence.” See T EX
. F AM
. C ODE § 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 4 31; 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, t he trial judge heard the witnesses testify during the hearing and was free to believe Yancy’s testimony regarding the abuse and to d isbelieve 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 lik elihood that violence will occur in the future. In support of his contention, Lewis points to evidence showing15

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 exc hanged since the band

- aid order was issued.
C ourts 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 E pperson , 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 L ewis’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 bel ieved that Yancy was going to take C.L. from him, and Y an cy testified that she feared Lewis w ould retaliate against her if she were awarded custody of C.L. Th e evidence is lega l l y and factually sufficient to s upport 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 cou rt 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 pot entially infringes o n his S econd A mendment right to possess a firearm16

without the benefit of a jury trial. A review of the record re veals that Le wi s did not

r ai se his due process argument in the trial court . Therefore, he has failed to preserve that issu e for our review. See T EX
. R. A PP
. 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, L ewis 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 concurr ent jurisdiction. Specifically, Lewis complains about the following language : “This order shall continue in full force and
effect for the life of the Appl icant BRIDNEY YANCY and until the child reaches the age of 18 unless otherwise modified later by this Court upon good cause shown. ”
S ection 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. ” T EX
. F AM
. C O DE § 85.025 (a)

. Section17

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 ap plicant 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 applic ant ’ 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.
T EX
. F AM
. C ODE § 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.
S ection 85.001(d) provides that if a court renders a protective order for a
pe riod of more than two years, the court must include in the order a finding described by Section 85.025(a

- 1). T EX
. F AM
. C ODE A NN . § 85.001(d)

. In his brief, Lewis18

asserts that the trial court made no specific findings in the order which would justify a li fetime protective order , and that the trial court did not issue any findings of fact or conclusi ons 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 oth er members of the family and are necessary for prevention of family violence. ” The protective order d oes not contain any of the required findings of section 85.025(a

- 1) to support a term of more than two years. See T EX
. F AM
. C ODE § 85.001(d)

. Accordingl y, w e 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 tha t should have been litigated in a prior suit. ” State & C ty. Mut. Fire Ins. Co. v. Miller , 52 S.W.3d 693, 696 (Tex. 2001)

. Res judicata is an affirmative defense that must be pleaded. T EX
. R. C IV
. P. 94;19

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 fou r th issue, Lewis c om plains 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 p rohibits Lewis from, among other things, “ go ing to or near, or within 400 fe e t 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 o ff 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 311 th district court’s temporary orders in the SAPCR. Although Lewis included a copy of unsigned temporary order s in the appendix to his brief, “documents attached as appendices to briefs do not constitute part of the record of the case and ca nnot be considered by this Court on appeal .” Garcia v. Sasson , 516 S.W.3d 585, 5 91 (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. ” St ewart 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 right s with respect to his possession of and access to C.L. while simultaneously p r ovid ing 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. ” I d

. Accordingly, we sustain Lewis’s fourth issue to the extent that we conclude the trial court erred by i ssuing 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 or der issued by the 311 th district court. As previously noted, th e order of the 311 th district court is not part of the record and, therefore , cannot be considered by this Court. See id.21

that p rotective o rder that prohibited father from communicating with or being within 500 feet of children , de f

ined as “protected persons” in order, but that also provid e d for f ather ’ s supervised possession of or access to the children , contained internally conflicting provisions ). Conclusion
We reverse the portion s 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 provid e for Lewis’s possession of and access to C.L. and r emand 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.