No. 01-14-00952-CV 

IN THE COURT OF APPEAL 

FOR THE FIRST DISTRICT OF TEXAS 

HOUSTON, TEXAS 

HERBERT JACKSON 

Appellant-Respondent 

PATRICIA JACKSON 

Appellee-Applicant 

Appeal from the 328TM JUDICIAL DISTRICT COURT 

CAUSE NO. 14-DCV-217167 

FORT BEND COUNTY, TEXAS 

BRJEF FOR APPELLANT 

Annie P. Briscoe 

1217 Prairie St., Suite 207 

Houston, Texas 77002 

713 270-8732 Telephone 

713 227-0066 Telecopier 

anniepump@yahoo.com 

Attorney for Appellant Herbert Jackson 

ACCEPTED

01-14-00952-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS

6/1/2015 10:01:09 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 6/1/2015 10:01:09 PM CHRISTOPHER A. PRINE Clerk
TABLE OF CONTENT 

Certificate of Interested Persons 4 

Statement regarding oral arguments 4 

Table of Contents 2 

Table of Citations 3 > 4 

Statement of the Issues 5 

Issue One 5 

Issue Two 5 

Statement of the Case 5>6 

Summary of arguments 7 

Argument and authorities 7-12 

Prayer for relief 12 

Certificate of Service 13. 

2 
TABLE OF CITATIONS 

STATUTES, CASES AND AUTHORITIES Page3 

STATUTES 

Art. V,§ 6 of the Texas Constitution 10 

Tex. Fam. Code Ann. 71.001 8 

Tex. Fam. Code Ann. § 81.001 (Vernon 1999) 

TEX.R. CIV. EVID. 901(a). Rule 901(b) of the Texas Rules of Civil 8 

and Criminal Evidence 

Tex. R. Crim. Evid. 404(b). 12 

Texas Rules of Procedure Nos. 451,453, and 455 10 

PERIODICALS 

Revisiting Standards of Review in Civil Appeals, 24 St. Mary's L.J. 1045,1145 (1993). 11 

CASES 

Boykin v. State, 818 S.W.2d 782,785 (Tex.Cr.App.1991) 9 

Choate v. San Antonio & AP Ry Co. 90 Tex 1896 10 

Cockerham v. Cockerham 218 S.W 3r d 298 (2007) 8 

Del una v. State 711 S.W. 2d44,46 (Tex. Crim. App. 1986) 8 

Faulk v. State, 608 S.W.2d 625,630 (Tex.Cr.App.1980). 11 

Huffman v. State, 746 S.W. 2d 212. 222 (Tex. Crim. App 1988) 9 

In re Epperson 1213 S. w 3d 541,543 (Tex. V Court of Appeals 2007, no pet.) 11 

In re Tex. Dep't of Family & Protective Servs., 210 S.W.3d 609,612 (Tex.2006) 12 

Jakobe v. Jakobe, No. 02- 04-000058 2005 Wl 503124 at 1 (Tex. App Fort Worth 8 

2005 no pet.). 

Meraz v. State 785 S.W. 2d 146,149, (Tex. Crim. App. 1990) 10 

3 
Middleton v. Kawasaki Steel Corp., 687 2d 42,44 (Tex. App. Houston 

[14th Dist.] 1985) writ ref;d n.r.e. per curiam. 

Pool v. Ford Motor Co. 715 S.W. 2d 629 (Tex. 1986) 

Valencia v. Garza 765 S.W. 2d 893, 895 (Tex. App. San 

Antonio 1989 no writ). 

Walker v. Packer, 827 SW 2d 833 - Tex: Supreme Court 1992. 
CERTIFICATE OF INTERESTED PERSONS 

The undersigned counsel of record certifies that the following person have an interest 

in the outcome of this case: 

1. Herbert Jackson Defendant 

2. Patricia Jackson Applicant 

Annie P. Briscoe 

1217 Prairie St., Suite 207 

Houston, Texas 77002 

713 270-8732 Telephone 

713 227-0066 Telecopier 

anniepump@yahoo.com 

Attorney for Herbert Jackson 

STATEMENT REGARDING ORAL ARGUMENTS 

Oral argument requested if the Court feels that this appeal may be aided by 

oral argument. 
STATEMENT OF THE ISSUES 

ISSUE one: APPELLANT WOULD SHOW THAT THE EVIDENCE PRESENTED WAS 

legally and factually EVSUFFICffiNT TO MAKE A FINDING OF FAMILY VIOLENCE. 

ISSUE two: APPELLANT WOULD SHOW THAT THE COURT ABUSED ITS 

DISCRETION IN MAKING A FINDING OF FAMILY VIOLENCE WHICH WAS 

AGAINST THE WEIGHT OF THE EVIDENCE PRESENTED. 

STATEMENT OF CASE 

This is an appeal from a judgment entered on September 23,2014 in the 328t h Judicial 

District Court On August 25,2104 Appellee/applicant, PATRICIA JACKSON filed an 

application for a protective order to be issued against Appellant, HERBERT JACKSON. 

Appellant filed a motion for new trial on October 7,2014. The motion for new trial was heard 

on October 27,2014 and the motion was denied. Both parties were pro se. 

There were no witnesses at the hearing other than Appellee and Appellant. The evidence 

Was the testimony of the witnesses and some photographs. 

Appellee testified that she and Appellant had been separated since 2011 that she was afraid 

of Appellant. She stated that Appellant came to her house on August 18,2014 and he entered 

the house uninvited. The parties were and are still married and no petition for divorce had 

been filed. Appellant had a key to the house and entered by using his key. She gave no 

testimony that he struck her that he yelled at her, that he threw things around in the house o r 

that he threatened her in any way. 

Appellee introduced photographs but did not state when the photographs had been taken a 

or how she came to possess the photographs or even if the photographs were of her and how she 

obtained the injuries in the photographs. 

Appellant refuted the testimony of Appellee He stated that they had two residences but 

They stayed involved with each other and had keys to each other houses. They each had keys to 

the two houses. Further they have vacations together in the past four years and came to each 

other houses on a regular basis. They were in fact still intimate with each other and had been 

intimate the night before the incident in question. Appellant was not aware of any anger from 
either party. His testimony was though they had problems in the marriage he believed they 

still had a viable marriage and was surprised at the incident 

On the night or early morning in question Appellant testified that he had attempted 

several times to call the Appellee and he did not receive an answer. He stated he then decided 

to go to the house because he knew Appellee took medication and was not sure if she was 

alright. He stated when he got to the house he rang the doorbell but did not receive an answer. 

He testified he went to the back door and pulled back the already damaged screen used his key 

and entered the house. He stated he and Appellee were downstairs on the sofa talking when 

the police arrived. Appellant answered the door and the police asked him to step outside. The 

police made no claim of observations of scars or injuries to either party. The police made no 

report of having heard a disturbance as they approached. Appellee made no outcry statements 

to the police at the time that the police were present. Appellant stated he later found out that 

the neighbor had been called by Appellee's daughter, who was not at the house, and the 

daughter had instructed the neighbor to call the police. 

There were no injuries to Appellee. Appellee did not go to the hospital and no medical r 

records were entered. Appellee never testified to any kind of violence at this incident. She did 

not claim he struck her, or pushed her, or yelled at her or tore off clothing, or did anything 

other than come into the house. Appellee offered photographs but did not testify as to what 

each of these photographs were, when they were taken, where they taken or provide any other 

evidence about the photographs. 

On testimony from Appellant that he had not done anything to Appellee was countered by 

the court that the damage to the screen door amounted to violence. Appellant contended that 

the screen door was unstable and had been unstable for a while. Appellant reason for going to 

the house was to have a discussion with Appellee about their living arrangements. Also 

Appellant knew that Appellee took medication and after attempting to call her several time he 

decide to go to her house to determine if she was well. 

SUMMARY 

A protective order as defined in Tex. Family code is an act by a family or household 

Member against another family or household member intended to result in physical harm, 

bodily injury, assault, sexual assault is a threat that reasonably places a member in fear of 

imminent physical harm, bodily injury, assault, sexual assault but does not include any act 
involving self defense. Tex. Fam. Code Ann. 71.004 (1). It is a civil court order issued to 

prevent continuing acts of family violence. 

A protective order and a finding of family violence carries significant social stigma. 

Cockerham v, Cockerham 218 S.W.3"1302. For this reason a protective order should be 

reviewed to see if the evidence is factually and legally sufficient. Jakobe v. Jakobe, No. 02-

04-000058 2005 Wl 503124 at 1 (Tex. App Fort Worth 2005 no pet.). 

ARGUMENT AND AUTHORITD2S 

ISSUE ONE RESTATED: APPELLANT WOULD SHOW THAT THE EVIDENCE 

PRESENTED WAS LEGALLY AND FACTUALLY INSUFFICIENT TO MAKE A 

FINDING OF FAMILY VIOLENCE. 

Therefore the evidence must be evidence that can be presented and must be evidence that is 

presented properly. 

The only evidence offered in the case was the testimony of the parties and some old 

photographs. In looking at all the evidence it present a clearer picture based on the conduct of the 

parties in the past and up to the date Of the alleged incident of whether family violence was likely 

to occur in the future. 

The photographs were not in authenticated and therefore were merely presented to bias the 

Court. The time the photographs were taken, who was the person the photographs, none of this was 

taken into account. 

There is a requirement of authentication or identification as a condition precedent to 

admissibility of evidence. TEX.R. CIV. EVH). 901(a). Rule 901(b) of the Texas Rules of Civil 

and Criminal Evidence contains the authentication or identification requirements for certain types 

of evidence. TEX.R. CIV. EVH) 901(b); TEX.R.CRTM. EVID. 901(b). and even though 

photographs are not specifically state in those rules, there is a common law predicate for the 

admission of these items into evidence. DeLuna v. State 711 S.W. 2d44,46 (Tex. Crim. App. 

1986) 

The introduction of a photograph requires proof of (1) its accuracy as a correct 

8 
representation of the subject at a given time, and (2) its relevance to a material issue. 

Huffman v. State, 746 S.W. 2d 212.222 (Tex. Crim. App 1988). 

Appellant objected as he had not seen these photographs and therefore was unable to 

establish his defense or to even properly cross examine the evidence. Even though the Court has 

some discretion in the allowing of photographs the court has a responsibility to determine if the 

evidence was admissible. Walker v. Packer, 827 SW 2d 833 - Tex: Supreme Court 1992. Thus, 

Appellant should have been afforded some opportunity to defend by being able to discover the 

documents that Appellee was presenting rather than being surprised by the photographs. 

Therefore Appellee failed to present factual of legal evidence to support her application and 

the case protective order should be vacated. 

ISSUE TWO RESTATED: APPELLANT WOULD SHOW THAT THE COURT ABUSED 

ITS DISCRETION IN MAKING A FINDING OF FAMILY VIOLENCE WHICH WAS 

AGAINST THE WEIGHT OF THE EVIDENCE PRESENTED. 

The Court is expected to interpret the facts presented to it in an effort to rule based on the 

intent of the legislators in composing the statue,." Boykin v. State 818 S.W, 2d 782, 785 (Tex. 

C rim , App. 19*> 1). A protective order as defined in Tex. Family code is an act by a family or 

household member against another family or household member intended to result in physical 

harm, bodily injury, assault, sexual assault is a threat that reasonably places a member in fear of 

imminent physical harm, bodily injury, assault, sexual assault but does not include any act 

involving self defense. Tex. Fam. Code Ann. 71.004 (1). It is a civil court order issued to prevent 

continuing acts of family violence. 

If we focus our intention on this statute it is an effort to keep family members from causing 

serious harm to another family member. It is not an intent of the courts to referee each and 

every family argument. The desire is for the court to be able use the language of the statute and the 

meaning of the statute to be able to reach a justifiable decision which supports the statute. 

Consequently Appellant would show that this verdict should be reviewed for legal sufficiency 

9 
start by considering all the evidence. Appellant would also show that evidence must be discarded 

when it does not support a verdict. The Texas Supreme Court has consistently interpreted Art. V, § 

6 of the Texas Constitution to mean that the courts of civil appeals, and later the courts of appeals, 

have the authority and responsibility to review the verdicts in civil cases to determine whether the 

evidence is factually sufficient. Meraz v. State 785 S.W. 2d 146,149, (Tex. Crim. App. 1990);. 

Pool v. Ford Motor Co. 715 S.W. 2d 628 (Tex. 1986) Choate v. San Antonio & AP Ry Co. 91 

Tex 406. That court has stated that the scope of review under a factually sufficient point 

requires the Court of Civil Appeals, in the exercise of its peculiar powers under the constitution and 

Texas Rules of Procedure Nos. 451,453, and 455, to consider and weigh all of the evidence in 

the case and to set aside the verdict and remand the cause for a new trial, if it thus concludes that 

the verdict is so against the great weight and preponderance of the evidence as to be manifestly 

unjust. 

The idea of looking at the meaning of the statute is to insure that the fact finder's own 

interpretation of the statute will not produce an absurd result. Faulk v. State 608 S.W. 2d 625,630 

(Tex Cr. App. 1980). 

Hence, Appellant request the court to review the trial court's findings for legal and factually 

sufficiency of the evidence by the same standards as in reviewing the evidence supporting a jury 

verdict, Revisiting Standards of Review in Civil Appeals, 24 St. Mary's L.J. 1045,1145 (1993). 

Since the trial court findings in a bench trial have the impact as a jury verdict it and there were no 

findings of fact Appellant request the Court review the complete statement of facts in the record. 

Middleton v. Kawasaki Steel Corp., 687 2d 42,44 (Tex. App. Houston [14th Dist-11985) writ 

ref;d n.r.e. per curiam. 

10 
There were no formal findings of fact when Appellant asked the court what was the family 

violence the court stated it was the" ripping" off of the screen door. There was no testimony by 

either party that the screen door was ripped off. Despite this however in order for this to meet the 

definition of family violence there has to be some reception by the party to whom the violence was 

supposed to have been directed for violence to have occurred. The Appellee would either have to 

had seen, heard or felt the door was ripped off to be placed in fear. Further there was no testimony 

from Appellee that she heard the screen door being ripped or that she saw the screen door being 

ripped or anything about the screened or that would place her in fear. Nor can we tell from the 

photographs when the screen was torn. There was no investigation done by the police to 

corroborate Appellee's story. 

Since the statute states there can be a finding of family violence if it is likely to occur again 

it appears from the limited evidence presented that the finding was based on something having 

happened before rather than any evidence that it is likely to happen again. 

Though often there are inferences drawn that if something has happened in the past it will 

happen in the future there is no absolute assurances that a past action will happen again. In re 

Epperson 213 S. W 3d 541,543 (Tex. Court of Appeals 2007). 

The inference here however must have something more than a mere testimony of Appellee 

that she was afraid. This is especially true when we look at the conduct of Appellee in that she and 

Appellee had keys to both houses, they had been coming and going to both houses. They had been 

intimate as recent as the night or day before. 

A more factual application would be if there is some overt act which seems to indicate that 

Violence is likely to occur again for example threat of some kind. Appellee presented nothing that 

said that Appellant had threatened her. She did indicate that he had called her names, but not 

indicated he had attached any threats to the name calling. Perhaps an even more sensible approach 

would be to view all the evidence. The courts have found that it is free for the fact finder to accept 

or reject all of a witness testimony. Valencia v. Garza 765 S.W. 2d 893,895 (Y Tex. App. San 

Antonio 1989 no writ). However it would be an abuse to accept the testimony of Appellee that 

11 
she has been afraid for the past four years and ignore the testimony that she very recently gave 

Appellant a key and that they were intimate with each other just a few hours before without there 

being some other overt act of Appellant to reestablish fear. Criminal rules of evidence state that 

wrongs do not prove character. Tex. R. Crim. Evid. 404(b). That Rule provides: 

"Evidence of other crimes, wrongs, or acts is not admissible to prove the 

character of a person in order to show that he acted in conformity therewith." 

Though the protective order in itself is not criminal the fact there can be consequences 

In which the liberty of a person can be taken away makes this element of evidence very 

important. 

In re Tex. Dep't of Family & Protective Servs., 210 S.W.3d 609,612 (Tex.2006). If the trial 

court fails to properly interpret the law or applies the law incorrectly, it abuses its discretion. 

Therefore the court abused its discretion in making a finding that family violence had 

occurred and was likely to occur again and the protective order should be vacated. 

WHEREFORE PREMISES CONSIDERED, Appellant prays that the protective order be vacated 

and judgment be set aside, the cause dismissed Appellant prays for any further relief. 

PRAYER 

Respectfully submitted 

Annie P. Briscoe 

1217 Prairie Street, Suite 207 

Houston, Texas 77002 

713-270-8732 Telephone 

713 227-0066 Telecopier 

TBN.03008500 

anniepump@yahoo.com 

Attorney for Appellant, Herbert Jackson 

12 
CERTIFICATE OF SERVICE 

I, Attorney Annie P. Briscoe, certify that today, June 1,2015, a copy of the brief for Appellant, 

were served upon 

Patricia Jackson 

2015HiltonheadDr. 

Missouri City, Texas, 77459 

Annie P. Briscoe 

13