Opinion issued December 28, 2023

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-22-00701-CV

———————————

R.S., Appellant

V.

D.R.T., Appellee

On Appeal from the 280th District Court

Harris County, Texas

Trial Court Case No. 2021-49103

MEMORANDUM OPINION

Appellant R.S.1appeals a protective order entered in favor of appellee 

D.R.T. In two issues, R.S. argues that the (1) trial court abused its discretion in 

issuing a protective order that tried to supersede any further orders from a different 

1 To protect the minor’s identity, we refer to the parties by initials. See TEX. R. APP. 

P. 9.8 cmt; TEX. FAM. CODE § 109.002(d).
2

trial court and (2) evidence was legally and factually insufficient to support the 

protective order.

We affirm.

Background

On August 13, 2021, D.R.T. filed a first amended application for protective 

order, asserting that she and R.S. are currently separated and are parents to a minor 

child, D.R.S.2 D.R.T. alleged that R.S. engaged in family violence under section 

71.004 of the Texas Family Code, and alternatively argued that R.S. committed

acts under Chapter 7B of the Texas Code of Criminal Procedure. D.R.T. included 

an affidavit in support of her request, detailing family violence and sexual assault 

against herself and D.R.S. R.S. answered the suit with a general denial. 

At a protective-order hearing in October 2021, D.R.T. testified that she is 

married to R.S., they have a four-year-old daughter, D.R.S., and D.R.S. had 

complained that R.S. had touched her private parts. Specifically, D.R.S. had used 

the bathroom and complained that her “private was hurting.” Upon D.R.T.’s 

questioning, D.R.S. said that R.S. had given her a bath at her grandmother’s house 

and after going to the bedroom, R.S. did not put on her clothing and started 

touching her private part. 

2 D.R.T.’s application notified the trial court that D.R.S. was subject to continuing 

jurisdiction of a court under the Texas Family Code due to a pending suit affecting 

the parent-child relationship in the 257th District Court. 
3

D.R.T. also testified about various incidents involving R.S. and D.R.S. In

November 2018, she asked R.S. to bathe D.R.S. When she checked on D.R.S., 

R.S. was naked with a “full erection,” while holding D.R.S. In March 2019, R.S.

changed D.R.S.’s diaper and D.R.T noticed she had inflammation or redness in her

vagina. 

During a bath in December 2020, D.R.S. put her finger on her anus and said 

she was massaging herself. D.R.T. asked her about it, and D.R.S. responded that 

R.S. had taught her how and that “it was going to be soft, that it was not going to 

hurt and that it was just a massage.” At bedtime, D.R.S. explained that R.S. would 

apply diaper rash cream on her private area and would use baby diapers. D.R.T.

testified that at the time, D.R.S. was not using diapers anymore “[s]o there was no 

reason to apply diaper rash creams during the day because she has no rashes and 

she didn’t use pampers or diapers.” D.R.S. told D.R.T. that she did not want to go 

back with R.S.

D.R.T. also testified about domestic violence during their marriage. In 

August 2003, R.S. grabbed her by the neck. She further recalled an October 2016 

incident in which R.S. threw her on the bed, and she slapped him. R.S. started to

choke her while his other hand punched her legs. When she tried to call the police, 

R.S. reminded her that she had an immigration issue. 
4

On cross-examination, D.R.T. testified that she and R.S. separated in April 

2019. Regarding a January 2021 incident in which it was alleged that R.S. was 

touching D.R.S.’s private parts, D.R.T. agreed that she contacted a pediatrician and

Child Protective Services (CPS) investigated but found “no cause.” She also 

agreed that a doctor was unable to note any abuse from a February 2021 forensic 

medical evaluation.

S.B., R.S.’s ex-wife, testified that they have a child who is now 15 years old. 

S.B. testified that she had no concerns about R.S.’s conduct with their child, who 

R.S. had been seeing since their divorce when the child was two years old. S.B

also testified that R.S. had never been violent with her and was not a violent 

person. 

During R.S.’s testimony, he denied D.R.T.’s allegations, including physical 

violence or inappropriate touching. Regarding the January 2021 incident, R.S.

testified that it never happened. He recalled four CPS investigations, and all the 

allegations were ruled out. When D.R.S. had a swollen vagina, R.S. explained 

that, earlier in the day, he had taken D.R.S. to a park where she was playing on a 

swing. He further testified that D.R.S. was later seen by a hospital nurse, who only 

found diaper rash. 

Regarding the November 2018 incident, R.S. explained that he bathed with 

D.R.S., but he kept his underwear on and did not have an erection. Regarding the 
5

December 2020 incident, R.S. explained that he had given D.R.S. a bath and told 

her to wash her private parts by herself. 

R.S. further testified that, in October 2016, D.R.T. had gotten upset, threw 

picture frames at him, and slapped him. He testified that he was trying to restrain 

her from getting more violent and from hurting herself or himself, but that he did

not choke her. R.S. testified that he never touched D.R.S. inappropriately and has 

never been violent with D.R.T. 

The trial court questioned R.S. about D.R.S.’s visit to a hospital. When 

asked if the forensic nurse who examined D.R.S. said she would report the incident 

to CPS, R.S. responded that the nurse stated, “there was nothing to report.”

At the end of the hearing, the trial court informed the parties that it would 

appoint an amicus attorney to get more information. The record does not include 

any other activity in the suit until August 2, 2022, when D.R.T. requested a

rendition on her application for a protective order. 

The trial court held a rendition hearing on August 16, 2022, and explained to 

the parties that the amicus attorney was unable to do its job because of a language 

barrier. The trial court then informed the parties of its rendition, and after an entry

hearing, signed an August 29, 2022 protective order under Title 4 of the Family 

Code—finding that family violence has occurred and is likely to occur in the future
6

and that R.S. committed an act constituting a felony offense involving family 

violence against D.R.T. or D.R.S. 

The trial court also found reasonable grounds to believe that D.R.T. or 

D.R.S. were victims of sexual assault and that R.S. had committed sexual assault 

against D.R.T. or D.R.S under Chapter 7B of the Texas Code of Criminal 

Procedure. The trial court made the protective order permanent for D.R.T., but it 

expires for D.R.S. when she turns 18.

3

 

R.S. now appeals.

Superseding Language

In his first issue, R.S. argues that the trial court’s protective order potentially 

conflicts with an order from a different trial court. Specifically, R.S. argues that 

the protective order states that it “supersede[s] any other conflicting provisions for 

[R.S.’s] access to or possession of the child under Cause Number 2019-63709 out 

of the 257th Judicial District Court of Harris County, Texas.” 

R.S. admits that at the time this protective order was signed, there was no

final order in the divorce proceedings—but “to the extent that the protective order 

sought to supersede any future order, such an act was an abuse of the trial court’s 

3 The protective order provides that R.S. “shall not have any contact with [D.R.S.], 

unless recommended in writing by a licensed professional child therapist.” The 

same provision was made for access to or possession of D.R.S.
7

discretion.” Specifically, R.S. challenges the following section of the protective 

order:

IT IS ORDERED that, as per Texas Family Code Section 

85.009, the terms for access to and possession of the child by 

[R.S.] as set forth within this order are valid and enforceable, 

and supersede any other conflicting provisions for [R.S.’s]

access to or possession of the child under Cause Number 2019-

63709 out of the 257th Judicial District Court of Harris 

County, Texas.

(Emphasis added).

A. Preservation of Complaint

To preserve a complaint for appellate review, the complaining party must

first present the complaint to the trial court by a timely request, objection, or 

motion. TEX. R. APP. P. 33.1(a)(1). The complaint raised in the trial court must 

state the grounds for the ruling sought “with sufficient specificity to make the trial 

court aware of the complaint.” Id. “The reason for the requirement that a litigant 

preserve a trial predicate for complaint on appeal is that one should not be 

permitted to waive, consent to, or neglect to complain about an error at trial and 

then surprise his opponent on appeal by stating his complaint for the first time.” 

Pirtle v. Gregory, 629 S.W.2d 919, 920 (Tex. 1982).4If a party fails to do this, the 

complaint cannot be considered on appeal. See Bushell v. Dean, 803 S.W.2d 711, 

4 See also Valdez v. Valdez, 930 S.W.2d 725, 728 (Tex. App.—Houston [1st Dist.] 

1996, no writ) (because party never complained to trial court, he never gave trial 

court opportunity to correct alleged error).
8

712 (Tex. 1991).

5 Moreover, a party’s complaint on appeal must comport with the 

objection it made in the trial court. See Benson v. Chalk, 536 S.W.3d 886, 895 

(Tex. App.—Houston [1st Dist.] 2017, pet. denied).

B. Analysis

Here, at the August 16, 2022 rendition hearing, after the trial court informed 

the parties of its ruling on the protective order, R.S. informed the trial court that 

they had the divorce trial and the 257th District Court ruled that visitation would 

be at a neutral location. R.S. further stated that the child had been examined by 

CPS, police, and a pediatrician and no one found abuse. The trial court stated, 

“Well I did not have anyone testify from CPS or a doctor’s office or anything like 

that. And I heard the testimony of the applicant and the affidavit was admitted and 

I am able to judge the credibility of the witnesses and the evidence and this was my 

decision. So I stand by my ruling.” 

The following exchange then occurred:

[D.R.T.]: The clarification of the parties, given just the nature of 

the case, would the Court like there to be language in the

final protective order that indicates that it supersedes any 

conflicting orders as it relates to access of the child?

[Court]: Yes.

5 See also Humble Surgical Hosp., LLC v. Davis, 542 S.W.3d 12, 21 (Tex. App.—

Houston [14th Dist.] 2017, pet. denied) (“Rule 33.1 requires the appealing party to 

adequately raise issues before the trial court to give the trial court notice of [the 

party’s] complaint.”).
9

[R.S.]: I would just object to that. One court—they’re both 

district courts and its not like this is appellate court, so.

[D.R.T.]: Well the family court does indicate that if there are 

conflicting orders—if Title IV orders conflict with Title 

V orders, that Title IV order supersede. That is a part of 

the protective order code. I thought it would be best to 

include it, so it was clear to the parties.

Without ruling on R.S.’s objection, the trial court stated that entry would 

occur on August 29, 2022. During the August 29 entry hearing, the following 

exchange occurred:

[D.R.T.]: Your Honor, at the close of the rendition last week, I 

believe it was, I inquired—well I brought to the Court’s 

attention that the parties had obtained orders from 

another proceeding that were in conflict with the orders 

that the Court had ordered in the rendition, and inquired 

as to whether or not we should include language 

indicating that the terms of the protective order 

superseded the terms of that order. In drafting the

proposed final protective order, I included that language 

as per the Texas Family Code 85.009, and I indicated the 

cause of the other Court order and the Court. We sent 

that to [R.S.] for his review and his objection was that the

Court did not indicate, in their rendition that was emailed

to us, to include the cause number, but it is our position

that for ease of enforcement for law enforcement and for 

the ability of the parties to know what they are and are 

not supposed to do and for enforceability purposes, it 

would not make sense, for lack of a better word, for that 

order to not be identified. So that is why we are here this 

morning, Your Honor.

. . .

[R.S.]: Yes, Judge. And there hasn’t been another order entered 

in the other case at this time. Your order says this order 

supersedes—or your rendition says this order supersedes 
10

any other order—any other order type language. That’s 

what your rendition is. And basically the order they 

submitted, they’re attempting to change the rendition.

[Court]: In what way, shape or form? Just because they’re adding 

some language? How is that—I mean, I’m not 

understanding.

[R.S.]: Well that’s not what your rendition was. I mean so—

[Court]: Okay. [Counsel]—

[R.S.]: So can I add language too or what?

[Court]: [Counsel], come on. Come on. This is—you know, I—

you know, some days—some days I often wonder how 

our profession has gotten off track, honestly, and I don’t 

mean that to be flippant or anything like that. But when 

you all were here, [D.R.T.] specifically asked of this 

Court whether or not the Court wanted that language in 

there and I said yes. This Court has the ability and has 

jurisdiction, within 30 days, to sign or change or modify 

or alter any portion of that order, whether it’s by motion 

or whether it’s sua sponte. The fact that there is another 

order, either it’s being signed or it will be signed, makes 

absolutely no sense not to include it. In fact, it would be 

kind of ridiculous not to include it, because that way 

when law enforcement or any other lawyer comes upon 

this order, it will make their job easier to be able to look 

up the case or to be able to refer to that order. It just 

makes sense.

So why we needed to have an approach and a hearing on 

this doesn’t make sense to me. When this is just pure 

common sense lawyering 101. So I’m going to order that

the language be in there and that the cause number be in

there and it doesn’t affect the true substance of the

underlying order, as far as what this Court has ordered. 

So as long as it doesn’t affect the true substance, then the

Court will grant it. So yes. [D.R.T.], it is granted.
11

[R.S.]: I don’t think that’s legal, but you know, that’s another 

argument.

[Court]: Well [R.S.], here’s your remedy. You can mandamus the 

appellate court or you can file an appeal once the order’s 

been signed. And I have no issue with either one of 

them. You are free to do that and if the appellate court

says otherwise, then I will abide by it or anyone coming 

after me will do so. Okay? So that’s your remedy. And 

it’s a very good remedy. So let’s use that instead of 

fussing about whether or not a cause number should go 

into a court case.

R.S. generally objected about the order at the August 16 rendition hearing; 

but, significantly, the trial court did not rule on the objection. See TEX. R. APP. P. 

33.1. At the August 29 entry hearing, R.S. appears to have objected that the 

protective order was not consistent with its rendition because it referred to the 

pending suit by the name of the trial court—the 257th District Court—and its cause 

number. After the trial court informed R.S. that the other suit would be included, 

R.S. objected only that he did not think the trial court’s action was legal. 

R.S. now argues on appeal that “to the extent that the protective order sought 

to supersede any future order, such an act was an abuse of the trial court’s 

discretion.” According to R.S., “the trial court had no jurisdiction to render an 

order that purports to supersede a future order of another court when the language 

of the Code does not state that it allows this”, D.R.T. should have filed her 

application in the 257th District Court, and the 257th District Court had authority 

to supersede the protective order. 
12

R.S.’s appellate complaints were not presented to the trial court with 

sufficient specificity during any of the hearings below and they were not raised in 

any post-trial motions. See TEX. R. APP. P. 33.1. Because R.S.’s appellate 

complaints do not comport with the general objections that he made in the trial 

court, they are not preserved for us to consider on appeal.

6 See id.

We overrule R.S.’s first issue.

Sufficiency of Protective Order

In his second issue, R.S. contends that the trial court’s protective order is not 

supported by legally or factually sufficient evidence. Specifically, R.S. argues that 

no evidence or factually insufficient evidence exists that he committed family 

violence or that family violence would occur in the future. We disagree.

A. Standard of Review and Applicable Law

“When the trial court acts as a fact-finder, 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. 2000)). When a party who does not have the burden of proof at trial 

6 To the extent that R.S. contests the trial court’s subject-matter jurisdiction, we 

have previously held that the 280th District Court has subject-matter jurisdiction 

over an application for a protective order. See Pruneda v. Granados, No. 01-20-

00043-CV, 2021 WL 2231267, at *11 (Tex. App.—Houston [1st Dist.] June 3, 

2021, no pet.) (mem. op.); see also Phillips v. Phillips, 651 S.W.3d 112, 117 (Tex. 

App.—Houston [14th Dist.] 2021, no pet.) (concluding that 280th District Court 

has jurisdiction over protective order); TEX. CONST. art. V, § 8; TEX. GOV’T CODE

§§ 24.007, 24.112(h), (i), 24.951. 
13

challenges the legal sufficiency of the evidence, we consider 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).

7

If more than a scintilla of evidence supports the challenged finding, it is 

legally sufficient, and we will overrule the issue. Haggar Clothing Co. v. 

Hernandez, 164 S.W.3d 386, 388 (Tex. 2005); City of Hous. v. Hildebrandt, 265 

S.W.3d 22, 27 (Tex. App.—Houston [1st Dist.] 2008, pet. denied). 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 a factual sufficiency challenge, we examine the entire record.

We 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).

7 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)). 
14

Moreover, under both types of evidentiary challenges, the factfinder, as the 

sole judge of the credibility of the witnesses and the weight to be given their 

testimony, has a right to resolve any conflicts in the evidence and to choose which 

testimony to believe. City of Keller, 168 S.W.3d at 819; see also Boyd, 425 S.W.3d 

at 431. And we cannot substitute our opinion for that of the trier of fact, under any 

circumstance, only because we might reach a different conclusion. Boyd, 425 

S.W.3d at 429.

B. Analysis

Protective orders may be issued pursuant to provisions in the Family Code 

and the Code of Criminal Procedure.8 See TEX. FAM. CODE §§ 81.001 (stating that 

court shall render protective order if it finds that family violence has occurred and 

likely to occur in future), 85.001 (same); TEX. CODE CRIM. PROC. art. 7B.003 

(stating that court shall issue protective order when reasonable grounds exist that 

applicant is victim of sexual assault). 

8 Both Section 81.001 and Section 85.001 were amended effective September 1, 

2023 to delete the required finding that family violence is likely to occur in the

future. See Act of May 24, 2023, 88th Leg., R.S., ch. 688 §§ 1, 2 secs. 81.001, 

85.001, 2023 Tex. Gen. Laws ––––, –––– (codified at TEX. FAM. CODE §§ 81.001, 

85.001). Likewise, Chapter 7B was amended effective September 1, 2023. 

Because the trial court rendered the protective order before the effective date of 

these amendments, all references are to the pre-2023 statutes.
15

Here, the trial court made findings under both Title 4 of the Texas Family 

Code and Chapter 7B of the Texas Code of Criminal Procedure. See TEX. FAM.

CODE § 85.001; TEX. CODE CRIM. PROC. art. 7B.003.

In his opening brief, R.S. only argued that the evidence was insufficient to 

support the trial court’s finding of family violence under Title 4 of the Texas 

Family Code. The trial court’s order, however, found that R.S. committed family 

violence under Title 4 of the Texas Family Code and also found that reasonable 

grounds existed that R.S. committed sexual assault against D.R.T. or D.R.S. under 

Chapter 7B of the Texas Code of Criminal Procedure. See Shoemaker v. State for 

Protection of C.L., 493 S.W.3d 710, 715 (Tex. App.—Houston [1st Dist.] 2016, no 

pet.) (“A person can request a protective order under either the Family Code or the 

Code of Criminal Procedure.”).

R.S. has not challenged the Chapter 7B findings in the protective order, 

which independently support it. See Straughan v. Girsch, No. 14-20-00763-CV, 

2022 WL 2977049, at *4 (Tex. App.—Houston [14th Dist.] July 28, 2022, no pet.) 

(mem. op.). As a result, we must affirm the protective order on the unchallenged 

Chapter 7B findings.9 

9 See Hagberg v. City of Pasadena, 224 S.W.3d 477, 481 (Tex. App.—Houston [1st 

Dist.] 2007, no pet.) (“[W]hen a judgment or order may have been based upon 

grounds not challenged on appeal, a court of appeals must normally affirm.”); 

Britton v. Tex. Dep’t of Crim. Just., 95 S.W.3d 676, 681 (Tex. App.—Houston [1st 

Dist.] 2002, no pet.) (“Generally speaking, an appellant must attack all 
16

Even if R.S. had properly challenged the Chapter 7B findings on sufficiency 

grounds, we conclude sufficient evidence supports the protective order. In that 

regard, the trial court found that reasonable grounds exist to believe that D.R.T. or 

D.R.S. were victims of sexual assault by R.S. Under the Penal Code, sexual 

assault occurs if a person intentionally or knowingly: (A) causes the penetration of 

the anus or sexual organ of another person by any means, without that person’s 

consent or if a person causes the penetration of the anus or sexual organ of a child 

by any means. TEX. PENAL CODE §§ 22.011(a)(1)(A), (2)(A). 

As detailed above, D.R.T. testified that D.R.S. had made an outcry of sexual 

assault against R.S., and D.R.T.’s affidavit also alleged that she had been forced to 

have sex with him against her will. R.S. disputed any allegation of 

inappropriateness with D.R.T. and D.R.S., he provided explanations to counter the 

allegations, and he testified that multiple investigations did not find inappropriate 

behavior. 

The trial court thus heard conflicting testimony on whether reasonable 

grounds existed to believe that D.R.T. or D.R.S. were victims of sexual assault. As 

the sole trier of fact responsible for judging the credibility of the witnesses, the trial 

court could have chosen to believe D.R.T. and disbelieve R.S. See Dolgener v.

Dolgener, 651 S.W.3d 242, 257 (Tex. App.—Houston [14th Dist.] 2021, no pet.). 

independent bases or grounds that fully support a complained-of ruling or 

judgment.”).
17

And we may not substitute our opinion for that of the trier of fact simply because 

we might reach a different conclusion. Boyd, 425 S.W.3d at 429. 

Instead, under the settled legal sufficiency standard, we must consider all of 

the evidence in the light most favorable to D.R.T., indulging every reasonable 

inference in her favor and disregarding any contrary evidence unless a reasonable 

factfinder could not. City of Keller, 168 S.W.3d at 827. In doing so, and as 

detailed above, we conclude some evidence supports the trial court’s finding that 

there were reasonable grounds to believe D.R.T. or D.R.S. were victims of sexual 

assault.

10 See TEX. CODE CRIM. PROC. art. 7B.003; City of Keller, 168 S.W.3d at 

827. Further, after considering and weighing all the evidence, we also conclude 

that the evidence is not so weak, nor is the finding so against the great weight and 

preponderance of the evidence, as to be manifestly wrong and unjust. Cain, 709 

S.W.2d at 176.

10 In his reply brief, R.S. contends that Chapter 7B requires a finding that violence is 

likely to occur in the future. We disagree. “No additional showings beyond status 

as a crime victim are required to obtain [a Chapter 7B protective order],” including 

any threat of future harm to the victim. R.M. v. Swearingen, 510 S.W.3d 630, 633 

& n.2 (Tex. App.—El Paso 2016, no pet.) (explaining that applicant for protective 

order previously “had to also prove reasonable fear of further harm from the 

alleged” offender but that “[t]he Legislature abrogated the fear of further harm 

requirement in 2011”); TEX. CODE CRIM. PROC. art. 7B.003. Because the 

evidence is sufficient to support the protective order’s finding under Chapter 7B

and no finding of family violence or future family violence is required under 

Chapter 7B, it is unnecessary to address R.S.’s argument in his second issue 

challenging the sufficiency of the evidence to support the finding that family 

violence occurred and that family violence was likely to occur in the future under 

Title 4, Family Code section 85.001. See TEX. R. APP. P. 47.1.
18

We therefore overrule R.S.’s second issue.

Conclusion

Accordingly, for all of the reasons above, we affirm the trial court’s 

protective order in all things.

Terry Adams

Chief Justice

Panel consists of Chief Justice Adams and Justices Landau and Rivas-Molloy.