## In the Court of Appeals Second Appellate District of Texa s at Fort Worth

___________________________ No. 02

- 21

- 00328

- CV

___________________________

On Appeal from the 467th District Court Denton County, Texas Trial Court No. 21

- 6190

- 467
Before Sudderth, C.J.; Birdwell and Wallach, JJ

. Memorandum Opinion by Justice Birdwell 

### R

ACHEL 

### H ANNAH 

### H USKINS 

### , Appellant

V


### . M ARCUS 

### E VERETT 

### G ARCIA 

### , Appellee2 MEMORANDUM OPINION Ap pell ant Rac hel Huskins appeals the trial court ’ s order denying her application for a protective order against Appellee Marcu s Garcia , argui ng the denial is so contrary to the overwhelming w eigh t of the evidence as to be clearly wr ong and unjust

. B ecause we must defer to the trial co urt ’ s determination of the credibility of the evidence, w e affirm the denial

. I. Background On July 22, 2021, Huskins filed an application for a protectiv e order ask ing the

t rial court to issu e a two

- year protective or d er against Garcia

. The trial court entered a

t emporary e x p arte p ro tective o rder ag ainst Garcia and set a hearing on Huskins ’ s application

. In a separate cause n umber , Garcia filed an applica ti on f or a p rotective order again s t Huskins

. On September 28, 2021 , the trial court heard both applications

. At the hearin g , Huskins t estified t hat she and Garcia had been in a dating relati o n s hip an d had li ved together fro m approximately July 2020 until M a y 2021. Hu skins fu rther testified to
several i ncidents involving physical assault, threat s, and sexual violence committed by
Garcia through out their dating relationship

. At the close of Hus kins ’ s evidence, Garcia moved for a directed verdict 1 on Huskins ’ s a pplicatio n for a protective order

. Despite finding “ a wealth of evidence ”

1 Because the re was no j u ry , this motion should have been labeled a motion for jud g me nt. See Est

. of Pandozy , No. 05

- 19

- 00755

- CV, 2021 W L 711500, at *3 (Tex.3 that family violence ha d occur red , the trial co urt gra nted Garc ia ’ s m otion for di rected
verd ict and de nied Huskin s ’ s application for a protective order , finding that Huskins
had not m et her b urden of proof

. 2 See Tex. Fam. Code Ann. § 85.001. Garcia then request ed a tria l amend ment to change his application for a protective order to a n applica tio n for joi nt mutual injunctions based on an agreement between the parties that incorporate d sta n dard “ st ay away ” language

. The “ stay away ” a greement w as pre sented to the trial court on the re cord , and t he tri al court ordered the agreement effective as of the date of the hearing , with a written order to foll ow. 3

App.

— Dallas Feb. 22, 2021, no pet.) (mem. op.) ; Sco tt v. Wooley , No. 02

- 19

- 00318

- CV, 2 0 20 WL 7063292 , at * 1 n.1 ( Tex. App.

— Fort Worth Dec. 3, 2020 , no pet.) (mem. op .)

. The distinct io n is significant because the standards of review fo r jury trials and be nch trials differ. See Qantel Bus. Sys., In c. v. Custom Controls Co. , 761 S.W.2d 302, 303

– 04 (Tex. 1988)

. In a nonjury case, the trial court can grant a motion for jud gment on either le gal

- sufficiency or factual

- sufficiency grounds. Id. a t 304.

2 T he trial court state d that, based on th e testimony p resented , there was no evidence that Garcia was likely to commit family violence against Huskins in the future

. In its writt en f in dings of f act and conclusions of law, the trial cou rt found that Huskins and Garcia had been in a d ating relati ons hip, that Huskins testified at the protective order hearing as to the abus e committed aga inst her by Garcia , that Garcia had commi tte d a cts of f amily vi ol ence against Husk ins , and th at Garcia d id not violate the temporary ex parte order issue d on A ugust 6, 2021

. Based on these findings, the trial court concluded that Garcia was n ot likely to commit family violence ag a in st H uskins i n the fu ture
.
3 See Com e t Aluminum Co. v. Dib rell , 450 S.W.2d 56, 59 (Te x. 1970 ) (orig. proceeding) ( “ A judgment is in fact ren dered whene ver the trial judge announces his decision in open court

. . . whether orally or by written memo r andum

. . . . ” ). If ther e exi s ts a subseque nt written order incorporat ing the parties ’ “ stay away ” agreement, it is not in the record

. Moreover, it is uncl ear from the record to which cause number th e agreement applies

. No part y has appealed the trial court ’ s ruling on Garcia ’ s tria l
a mendment or the entry of the “ stay away ” agreement
.4 On November 8, 2021 , the trial cour t signed an order denying Huskins ’ s

a pplic atio n for a pro tective order , fro m which Huskins now appeals

. On appeal, she
contends the trial court ’s denial of h er applic ation for a protect ive order was so contrary to the ove rwhelming weight of the evidence as to be cl early w ron g a nd unjust

. See Cain v. Bain , 709 S.W.2d 175, 176 (Tex. 1986).
II. Standard s of Review
There is one issue and one issue alone , which is whether the evidence was leg ally and fac tually sufficient to support the trial court ’ s order denyin g Huskins ’ s applicat ion for a protective order

. When the trial court acts as fa ct finder, we re view its
fi n dings under the legal

- and factual

- sufficiency standards

. 4 In re Doe , 19 S.W.3d 249, 253 (Tex. 2000); see also Watts v. Adviento , No. 02

- 17

- 00424

- CV, 2 019 WL 1 388 534, at

* 3 n.3 (Tex. App.

— Fort Worth Mar. 28, 201 9, no pet.) ( per curi a m ) (mem. op .) ( stating th at l egal

- and factual

- su ffic iency standards of review are prop er in appeal s from protective orders) ; Jakobe v. Jakobe , No. 2

- 04

- 068

- CV, 2 005 WL 50 31 24, at * 1 n. 4 (Tex. App.

— Fort Worth Mar. 3, 2005, no pet.) (per curiam) (me m. op.) (measuring
the sufficiency of the evide nce in protective order appeals by l egal

- and fa c tual

su fficiency contentions)

.

4 Based on this court ’ s precedent, w e reject Huskins ’ s request that we app ly the abuse of discretion standard of review

.5 A. Legal Su fficiency We may sustain a legal

- suffi cienc y challen ge

— that is, a no

- evidence challenge

— only when (1) the record bears no evidence of a vital fact, (2) the r ules of
law or of evidence bar the c ourt fro m giving wei ght to the only evidence offered to prove a vital fact, (3) the evidence offered to pr ove a vit al fact is no more than a mere scintilla, or (4) the evidence esta blishes conclusively the opposite of a vital fact. Gunn v. McCoy , 554 S.W.3 d 64 5, 6 58 (Tex. 201 8)

. In determining whether legally sufficient evidence supports the challenged fi nding , we must co nsider evidence favorable to the finding if a reasonable factfi nder could , and we must disregard contrary evidence
unless a reasonable fac tfin der could not. C ent. Re ady Mix Concrete Co. v. Islas , 228 S.W.3d 649, 651 (Tex. 2007 ); City o f Ke ller v. Wilson , 1 68 S.W.3d 802, 827 (Tex. 2005). We indulge “ every reasonable in ference deducible from the evidence ” in support of the challenged finding. Gunn , 55 4 S.W.3d at 658 (qu oting Bustamante v. Ponte , 529 S.W.3d 447, 456 (Tex. 2017))

. When a party attac k s the le ga l sufficiency of an adverse finding on an issue on which the pa rty had the burden of proof, th e party must demonstrate on appeal that
the evid ence establishes , as a matter of law, all vital facts in support of the issue. Cath

. Diocese of E l Paso v. Porte r , 622 S.W.3d 824, 834 (Tex. 2021)

. In reviewing a “matter of
law ” challenge, we must first examine the record for evidence that supports th e fi ndin g , while ign oring all evidence to the contrary. Dow Chem. Co. v. Francis , 46 S.W.3d 237, 241 (Tex. 2001)

. If n o evidence support s the finding, then we will examine the6 entir e record to determine if the contrary position is established as a matter o f la w. I d

. We will s ustain the issue only if the contrary position is conclu sively established. Id

. E videnc e conclus iv ely establishes a fact when the evidence leaves “ no room for

or dinary minds to differ as to the conclusion to be drawn from it. ” Int’l Bus . Ma ch

. Corp. v. Luf kin In dus., LLC , 573 S.W.3d 224, 235 (Tex. 2019 ).
B. Factual Sufficiency
When rev iewing an asser ti on that the evidence is factually insufficient to support a fin ding, we set aside the finding only if, after considering and weighing all
the pert inent record evide nce, we determine tha t the credible evidence supporting the finding is so w eak, o r so cont ra ry to the overwhelming weight of all the evidence, that
the fin ding should be set aside and a new trial ordered. Pool v. Ford Motor Co. , 7 15
S .W.2 d 629, 635 ( Tex. 1 986) (o p. on reh’g); Cain , 709 S.W.2d at 176 ; Garza v. Alviar , 395 S.W.2d 8 21, 82 3 (Tex. 1 96 5). When the party with the burden of proof appeals
from a fail ure to find, th e party must show that the failure to find is against the gr eat weig ht and pre ponderan ce of the credible evidence. Dow Chem. Co. , 46 S.W.3d at 242 ; Cropper v. Ca terpil lar Trac t or Co

. , 754 S.W.2d 646, 651 (Tex. 1988); see also Gonzalez v.
McA llen Med. Ctr., Inc. , 195 S.W.3d 680, 681

– 82 (Tex. 2006) (illustrating the
appr opri ate standa rd of review)

. Findings of fact are th e exclusive province of the factfinder. Belle fonte
Underwrit er

s Ins. Co. v. Brown , 704 S.W.2d 742, 744 (Tex. 1986)

. Acting as fact finder, the
trial court is the sole judge of the credibility of the wi tnes ses and the we ight to be7 given to their testimony. S co tt , 2 0 20 WL 7063292 , at * 4

. On appeal, we must de fer to
th e t rial court ’ s credibility determi nations

. Id . a t *3. Ind eed , an ap pellate court must not substitute its judgment for that of the factfinder

. Golden Eagle Archery, Inc. v. Jackson , 116 S.W.3d 757 , 761 (Tex. 2003)

. III. Analysis
Under th e Texas Fa mily Co de , a trial court shall render a protective order if , at the cl ose of a hearing on the application fo r a protective order, the court finds that family violence has occurred and is likely to occur in the future. Tex. Fam. Code Ann. § § 81.00 1 , 85.001

. Here, th e evidence does not esta blish as a matter of law t hat fami ly
violen c e i s likely to occur in the future , and the trial court ’ s failure to find that family
violence i s likely to occur in the future is not against the great weight and
prepo nderance o f the c re dible evidence

. After the hearing on Huskins ’ s application fo r a pr otecti ve order, the trial court

con clu ded that , although there was “ a wealth of ev idence ” that family violence had
occurred in the past , there was no evidence th at f amil y violence was lik el y to occur in
the future. Evi dence of past abu sive conduct permits an inference that violent be havi o r will continue in the future. Hassan v. Hassan , No. 14

- 17

- 00179

- CV, 2018 WL 3061320, at *2 (Tex. App.

— Houston [1 4th Dist

. ] June 21, 201 8, no pet.) (mem. op .) (citing In re Epperson , 21 3 S.W.3d 541, 543 (Tex. App.

— Texarkana 2007, no pet.)).
However , th is inference is not mandatory

. Scott , 2 0 20 WL 7063292 , at * 4 n.8 ; Hassan , 2018 WL 3061320, at *2

. A trial court is thus no t r e quir ed to find “ t hat a pe rson will8 continue viol ent behavior in the future becau se of past violence. ” Hassan , 2018 WL 3061320, at *2 (quoting Gonzalez v. Galvan , No. 13

- 08

- 488

- CV , 2009 WL 1089472, at *2 (Tex. App.

— Corp us Christi

– Edinburg Apr

. 23, 2009 , no pet .) (mem. op.)) ; see al so Scott , 2 0 20 WL 7063292 , at * 4 n.8 ( stating that a fi nding of past violence “ would not have required the trial court to ma ke a future

- violence finding in the absence of other
evidence of that likelihood ” )

. At the hearing on he r app lication for a protecti ve order , Hus kins testified to

seve ral in stances of fa mily violence that had occurred during her relationship with
Garcia. Huskins ’ s testimony described Garcia ’ s past acts of phys ical and verba l a buse,
and photographs admitted into evidence show bruising a nd rednes s on her face, neck, arm, and ribs. Although the trial c ourt could not deny that this “ wealth of evidence ” shows that family violence had occur red, this evide n ce alon e did not re quire the trial

court to find that Garcia would engage in famil y viol en ce in t he future. See Hassan , 2018 WL 3061320 , at *2; Gonzalez , 2009 WL 1089472, at *2 ; Epperson , 213 S.W.3d at 543

. W e therefo re c anno t say that a likelihood of futu re violen ce is conc lusi vely established by the evidence of Garcia ’ s past violent a cts
. F urther , H uskins testified that Garcia had not attem pte d to contact her directly since July 2 3 , 2021 , and that he had not communicated wit h her , even after the

te mporary ex parte order was no longer in place

. Additionally, Garcia had mov ed to south Texas, wh ich was an eight

- hour drive fr om the city in which Huskins resided

. And Huskins testi fied that she belie ved Garc ia would sta y awa y from he r and would9 not con tact her, if the trial court ordered him to do so

. 5 When v iewed in the light
most favorable to the trial co urt ’ s finding, and ind ulging “ every reasonable inference
deduc ible ” from i t, we cann ot say that this evidence estab l ishes conclusively the opposite of a vita l fact, nor can w e say that the record b ears no evidence of a vital
fact. See Gunn , 554 S.W .3d at 6 58 ; Cent. Ready Mix Concrete Co. , 228 S.W.3d a t 651; Ci ty of Keller , 168 S.W.3d at 8 27. In othe r words, a reasonabl e factfinde r could consider this
evidence and reasonably infer from it that family violence was not likely to occur in
the fut ure

— a v ital fac t when determining whether to issue a protective order.

5 The trial court subsequently ordered Garcia to stay awa y fro m Huskins and to not co ntact her. At th e clos e of the hea ring, t he trial court ordered the “ stay away ” agree ment between the parties effective as of the d ate of the hearing. Per the agreement, Huskins and Gar ci a may not (1) c ommunicate ; (2) come within 100 yards of each other ’ s home or wo rkplac e; (3) communicate via social media ; (4) post anything to social media about the other party; or (5) at tempt t o ga in informa tion about the oth er party
. Huskins an d Garcia acknowledged on the record tha t the agreement is perman e nt and that a ny violation of its terms could result in a moneta ry fine or confi nement in jail.
Hus kins appea ls from the trial court ’ s order denying her ap plication for a protective order , which the trial court signed approximately fort y days after the hearing

. Although the trial court d enied Huskins ’ s app lication for a protec tive order on the record at the hearing, the parties ’ “ stay away ” agreem e nt was in effect when the trial court si gned its order denying the application

. We also note that th e “ stay away ” agreement d oes not moot thi s appeal , as t he agreement d id not fully resolve the controversy between the parties or address all issues raised in Huskins ’ s application for a protective order. See In re Kellogg Brown & Root, Inc. , 166 S. W.3d 732, 737 (Tex. 2005 ) (orig. proceeding) ; Bd

. of Adjustment of San Antoni o v. Wende , 92 S .W.3d 424, 427 (Tex. 2002)

. For example , the “ stay away ” agre ement d id not resolve the issue s of Huskins ’ s request for attorney ’ s fees or Garcia ’ s possession of a firearm.10 Although Huskins testi fied t hat she was af raid of Garcia an d feared future
har m from him , the trial court was “ the sole ju dge of [Huskins ’ s] credibility and the weight to be given to her testi mony . ” S cott , 2 0 20 WL 7063292 , at * 4 ; see also Ci ty of
Keller , 168 S.W.3d at 8 19 (stating that the f actfinder is the sole judge of the credibility of witnesses and the weight to give their te stimony)

. We cann ot s ubst itute ou r opinion or judgmen t for that o f the tr ial cour t and determine that we would have g ranted
Huskins ’ s application for a protective order

. See Ci ty of Keller , 168 S.W.3d at 8 19 ; Golden Eagle Archery , 116 S.W.3d at 7 61; Boyd v. Palmore , 425 S.W.3d 425, 429 (Tex. A pp . — Houston [ 1 st D i st.] 2 01 1, no pe t .)

. Indeed, th is is a credibility issue, and th at determination belongs exclu sive ly to the t rial court a s fact finder, not to this court. See Golden Eagle Archery , 116 S.W.3d at 7 61

. The trial court h ad the opportunity to hear Huskins ’ s te stimony a n d view all
evi dence fi rst

- hand , a nd t he trial court obviously did not believe that Ga rcia ’ s past

acts

— several in stances of family violence

— necessarily translated into evidence that
Garcia would commit future act s o f violence against Huskins

. See Gonzalez , 20 09 WL 1089472, at * 3

. Accordingly, d eferring as we must to the trial court ’ s determination of
H usk i ns ’ s credibility and the weight of all evidence presented , we cannot say that the
trial court ’ s finding regarding future family violence w as so against th e g reat w ei ght and pre ponderance of the evid ence a s to be clearly wrong and unjust

. See Dow Chem. , 46 S.W.3d at 242; Cain , 709 S.W. 2d at 176 ; Sco tt , 2020 WL 7063292, at *5. We
therefore overrule Hus kin s ’ s only issue.11 III. Conclusion Having overruled Huski ns ’ s sol e issue, w e affirm the trial co urt ’ s November 8,
2021 order denying Husk ins ’ s applicat ion for a protective order. 6 /s/ Wade Birdwell
W ade Birdwell J ustice Delivered: August 31, 2022

6 Huskins filed Appellant ’ s Ob jections an d Mo t ions to Strike Appellee ’ s Brief, which has been carried with the case. The court has considered the motion and Garcia ’ s response and is of the opi nion that relief should be denied. Accordingly, Huskins ’ s motion is deni ed.