Opinion issued April 14, 2015

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-14-00457-CV

———————————

SAM KUZBARY, Appellant

V.

MIRIAM KUZBARY, Appellee

On Appeal from the 280th District Court

Harris County, Texas

Trial Court Case No. 2014-13468

MEMORANDUM OPINION

Miriam Kuzbary applied for a protective order against her father, Sam 

Kuzbary, alleging that she was in fear for her safety. After considering six hours of 

testimony and multiple emails Sam had written to Miriam in the months before the 

protective-order hearing, the trial court found that Sam had committed family 
2

violence against his adult daughter in the past and was likely to do so again in the 

future. Accordingly, the trial court granted Miriam’s application. Sam moved for a 

new trial. The trial judge who issued the protective order recused herself; another 

judge denied his motion. 

In four issues, Sam contends that the trial court erred by (1) “expanding the 

definition of family violence,” (2) finding that Sam committed family violence in 

the past, (3) finding that Sam was likely to commit family violence in the future, 

and (4) engaging in conduct that led to the rendition of an improper judgment.

We affirm.

Background

Miriam Kuzbary is a graduate student in mathematics at Rice University in 

Houston. She attends Rice on a full scholarship and receives a salary from the 

university for her work as a teaching assistant in the math department. She is 23 

years old and is financially independent. 

Miriam’s parents have a home near Dallas. In 2012, her father accepted 

employment in Houston. He moved into Miriam’s apartment for a couple of 

months, staying with her during the week and returning to Dallas on the weekends. 

According to Miriam, she eventually asked him to move out because Sam was 

“drinking a lot” and “keeping [her] up until one or two in the morning screaming at 

[her].” Sam moved into an extended stay hotel in the Houston area. 
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Tensions grew between the two and, in January 2013, Miriam asked Sam to 

stop contacting her. He responded by email: “Do not provoke me to teach you a 

life lesson. I am still equipped and capable, and no one will deter me from doing 

so, if I deemed it warranted. No one.” In emails sent over the next two months, he 

wrote, “I will be commanding your next order in life,” “watch your peep hole,” 

that Miriam “will be subjected to necessary lessons,” and that she cannot “endure 

. . . consequences” because of her “cowardliness.”

When asked at the hearing if Sam had ever been physically abusive towards

her, Miriam responded, “Yes.” She testified that there had been multiple incidents 

of repeated slapping and that “watch your peep hole” is something he would often 

say before hitting her. Miriam testified about one event in particular. She stated 

that, when she was 19, he pushed her against the refrigerator in his home and 

“slapped [her] repeatedly back and forth between his hands.” She also testified 

about a time when Sam put his hands on her neck and pushed her until she fell 

over. 

In June 2013—five months after Miriam originally told Sam to stop 

contacting her—she sent him an email stating, “You need to stop threatening me.” 

He responded by writing, “I do not threaten, kid. I warn and execute sanctions

. . . .” The next day, Sam sent Miriam an email saying, “I will see your crying 

silhouette at [sic] my next order of business with you.” 
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Miriam testified that Sam’s emails became “increasingly hostile and 

nonsensical.” Also, he came by her apartment after being instructed not to contact 

her. She testified that his continuous emails scared her and she believed he was 

going to hurt her. Miriam contacted Rice University Police for assistance. 

The police incident report, admitted into evidence at the protective-order 

hearing, states that the police contacted Sam in June 2013 and that Sam said any

future correspondence with his daughter would be limited to contact through an 

attorney. 

In February 2014, Sam wrote an email to Miriam’s grandmother and copied

Miriam on the correspondence. He stated that Miriam “is still going to be up for a 

lot of a— whipping” but that he would not “dirty [his] hands” with the matter; 

instead, it would be by another. One week later, Sam emailed Miriam directly, 

stating, “[Y]ou may think you got away with your bad conduct with mom. In your 

dreams kid, only. You won’t. I am about to teach you that, the hardest way I am 

capable of . . . I have no mercy on garbage kids like you.” 

Miriam again contacted the Rice University Police. The police called Sam 

on February 11 and instructed him to stop contacting Miriam. He agreed by phone 

but sent more emails to Miriam that same day. The campus police contacted Sam 

several more times and asked him to stop contacting Miriam. Each time he agreed 

but would continue sending emails contrary to his statements to the police. At 
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times, his emails to Miriam would be within hours of his phone conversations with 

the police officers instructing him not to contact her. Miriam described one email 

as stating that “he would cut me into pieces and no one would be able to do 

anything about it.” Another said “he would barbecue” her.

Eventually, Sam began emailing Miriam’s professors and interfering with 

her professional relationships. He also sent emails to other university 

administrators and campus police officers.

Miriam testified that, in her opinion, Sam “seem[ed] to be growing more and 

more desperate and scary,” ignoring directives from Miriam and campus police to 

end the contact, and sending emails “multiple times each day.” She stated that her 

father’s actions “put [her] in fear of [her] physical and emotional safety.”

Miriam filed an application for a protective order in March 2014, attaching 

an affidavit that detailed past physical aggression and copies of various emails 

from Sam. Additional emails were admitted into evidence during the hearing. 

At the conclusion of the hearing, the trial court announced its findings that 

family violence had occurred in the past and was likely to occur in the future. The 

trial court granted Miriam’s application for a protective order. Sam was ordered 

not to contact Miriam directly or through third-parties, not to go with 400 feet of 

her residence, school, or work, to relinquish possession of his multiple firearms, 

and to complete a battering intervention and prevention program, among other 
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requirements. The trial court also ordered the suspension of Sam’s license to carry 

a concealed handgun. Although requested to do so, the trial court did not issue 

findings of fact or conclusions of law outside of those contained in the protective 

order. 

Sam filed a motion for new trial, arguing that there was insufficient evidence 

of past family violence or the likelihood of future violence, the trial court relied on 

an incorrect definition of “family violence” that did not comport with the statutory 

definition, the trial court erred in overruling evidentiary objections, and “the trial 

court abused its discretion during the trial when the trial judge was ‘texting’ on a 

mobile device because such a distraction led to the improper rendition” of a 

protective order. The trial judge recused herself from ruling on the motion for new 

trial. Another judge was appointed, and the motion was denied. 

Sam timely appealed.

Sufficiency of Evidence Challenges

In his second and third issues, Sam argues that the evidence did not support 

the trial court’s conclusions that Sam had committed family violence in the past or 

that he was likely to do so again in the future.

A. Standard of review

When the trial court acts as a factfinder, we review its findings under the 

legal and factual sufficiency standards. In re Doe, 19 S.W.3d 249, 253 (Tex. 2000); 
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Vongontard v. Tippit, 137 S.W.3d 109, 112 (Tex. App.—Houston [1st Dist.] 2004, 

no pet.). When the party who does not have the burden of proof at trial challenges 

the legal sufficiency of the evidence, we consider all of the evidence in the light 

most favorable to the prevailing party, indulging every reasonable inference in that 

party’s favor and disregarding contrary evidence unless a reasonable factfinder

could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); City of 

Houston v. Hildebrandt, 265 S.W.3d 22, 27 (Tex. App.—Houston [1st Dist.] 2008, 

pet. denied). “If there is any evidence of probative force to support the finding, i.e., 

more than a mere scintilla, we will overrule the issue.” Hildebrandt, 265 S.W.3d at 

27 (citing Haggar Clothing Co. v. Hernandez, 164 S.W.3d 386, 388 (Tex. 2005)).

When reviewing a factual sufficiency challenge, we examine all of the 

evidence in the record and will set aside the trial court’s finding only if it is “so 

against the great weight and preponderance of the evidence as to be clearly wrong 

and unjust.” Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); Kroger Co. v. 

Persley, 261 S.W.3d 316, 319 (Tex. App.—Houston [1st Dist.] 2008, no pet.); 

Richardson v. Estate of Smith, No. 01-14-00034-CV, 2014 WL 6068427, at *2 

(Tex. App.—Houston [1st Dist.] Nov. 13, 2014, no pet.) (mem. op.). The trier of

fact is the exclusive judge of which facts have been proven, which witness is 

credible, and the weight to be given any witness’s testimony. Turner v. KTRK 
8

Television, Inc., 38 S.W.3d 103, 134 (Tex. 2000); Benoit v. Wilson, 239 S.W.2d 

792, 796–97 (Tex. 1951). 

When there is conflicting evidence, the trier of fact may believe one witness 

and disbelieve others. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986); 

CCC Grp., Inc. v. S. Cent. Cement, Ltd., 450 S.W.3d 191, 196 (Tex. App.—

Houston [1st Dist.] 2014, no pet.). The trier of fact is permitted to resolve 

inconsistencies in the testimony of any witness. McGalliard, 722 S.W.2d at 697; 

CCC Group, 450 S.W.3d at 196. It may draw inferences from the facts and choose 

between conflicting inferences. Ramo, Inc. v. English, 500 S.W.2d 461, 467 (Tex. 

1973); Lakner v. Van Houten, No. 01-09-00422-CV, 2011 WL 1233381, at *3 

(Tex. App.—Houston [1st Dist.] Mar. 31, 2011, no pet.) (mem. op.) (affirming 

grant of protective order).

An appellate court will not overturn a factfinder’s determination unless only 

one inference can be drawn from the evidence and it is counter to the factfinder’s 

resolution of that issue. Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 461 

(Tex. 1992); Lakner, 2011 WL 1233381, at *3.

B. Family code provisions concerning protective orders

A court shall render a protective order if the court finds that family violence

(1) has occurred and (2) is likely to occur in the future. TEX. FAM. CODE ANN.

§§ 81.001, 85.001 (West 2014). “Family violence” is defined, in pertinent part, as
9

[A]n act by a member of a family . . . against another member of the 

family . . . 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 . . . . 

TEX. FAM. CODE ANN. § 71.004(1) (West 2014) (emphasis added). Thus, a family 

member’s actions can meet the definition if they are intended to result in harm or 

involve a threat that reasonably places the other family member in fear of 

imminent harm. Boyd v. Palmore, 425 S.W.3d 425, 430 (Tex. App.—Houston [1st 

Dist.] 2011, no pet.).

“Given the remedial nature of [the Family Code’s protective order 

provisions], courts should broadly construe its provisions so as to effectuate its 

humanitarian and preventative purposes.” Id.

C. Past family violence

In his second issue, Sam contends that the evidence was legally and factually 

insufficient to establish that he committed family violence against Miriam in the 

past. More specifically, Sam asserts that there was “no evidence of an overt 

physical act” in the past. 

1. Legal sufficiency

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

shows that on at least three occasions Sam was physically aggressive with Miriam. 

At least twice—after Miriam had reached the age of majority—Sam slapped her 
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face repeatedly back and forth. On another occasion, he entered his adult 

daughter’s bedroom, put his hands on her neck, and pushed her hard enough to 

cause her to fall down. When asked at the hearing if Sam had been physically 

abusive towards her, Miriam responded, “Yes.” 

Miriam’s testimony about these incidents provides legally sufficient 

evidence of past family violence. Compare Vongontard, 137 S.W.3d at 113 

(concluding that actions by ex-boyfriend, in which he “pushed” her on three 

occasions, met equivalent definition for “dating violence”), and Dempsey v. 

Dempsey, 227 S.W.3d 771, 778 (Tex. App.—El Paso 2005, no pet.) (stating that 

ex-husband’s “act of pushing” his ex-wife “falls squarely within the definition of 

family violence”), and Clements v. Haskovec, 251 S.W.3d 79, 85 (Tex. App.—

Corpus Christi 2008, no pet.) (holding that father’s actions, including when he 

“raised his fist at his daughter” without striking her, was evidence of family 

violence), with Thompson v. Thompson O’Rear, No. 06-03-00129-CV, 2004 WL 

1243080, at *2–4 (Tex. App.—Texarkana May 12, 2004, no pet.) (mem. op.) 

(dissolving protective order after noting that ex-husband was accused of verbally 

harassing his ex-wife and sending emails that criticized her but that ex-wife 

admitted he had neither physically harmed her nor threatened to do so). At a 

minimum, evidence of Sam’s past physical aggression was legally sufficient to 

conclude that Sam intended to place Miriam in fear of imminent physical harm, if 
11

not to actually harm her. Accordingly, we conclude that there is more than a 

scintilla of evidence to show that Sam had committed acts of family violence in the 

past. 

Sam suggests that these incidents occurred too long ago to be considered by 

the trial court. However, he cites no authority for the proposition that acts of family 

violence that occurred two to four years before the application for a protective 

order are too remote to support the issuance of a protective order. Our review 

indicates that they are not. See Dempsey, 227 S.W.3d at 773–78 (considering 

actions by ex-husband five years before application for protective order and 

holding that evidence was legally and factually sufficient to grant protective order).

We conclude that the trial court’s finding of past family violence is 

supported by legally sufficient evidence. Accordingly, we need not reach Sam’s 

argument concerning whether his emails establish past violence.

2. Factual sufficiency

Miriam testified that Sam had been physically abusive towards her in the 

past. She testified that Sam had a history of repeatedly slapping her and, on at least 

one occasion, he grabbed her by the neck and pushed her down. 

During Sam’s testimony, he discussed the incident in Miriam’s room when 

he allegedly pushed her down. He testified, “Yes, I am rough and yes, I was rough 
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with her.” He did not directly deny pushing her down. Instead, he offered, “I don’t 

think I can do that. She’s a lot heavier than me.” 

The trial judge, as factfinder, was free to evaluate the credibility of the 

witnesses and choose to believe that Miriam’s account of the past events was more 

credible. McGalliard, 722 S.W.2d at 697; CCC Grp., 450 S.W.3d at 196. The trial 

judge, likewise, was free to disagree with Sam’s characterization of the evidence 

and to conclude that Sam had committed family violence. McGalliard, 722 S.W.2d 

at 697; CCC Grp., 450 S.W.3d at 196. This finding is not so weak as to be clearly 

wrong or manifestly unjust. See Ortiz, 917 S.W.2d at 772; Persley, 261 S.W.3d at 

319. Thus, the trial court’s finding is supported by factually sufficient evidence.

We overrule Sam’s second issue.

D. Future family violence

In his third issue, Sam contends that there was legally and factually 

insufficient for the trial court to have found that he was likely to commit acts of 

family violence in the future. 

In cases involving family-violence protective orders, evidence that a person 

has engaged in abusive conduct in the past permits an inference that the person will 

continue this behavior in the future. In re Epperson, 213 S.W.3d 541, 544 (Tex. 

App.—Texarkana 2007, no pet.) (“Oftentimes, past is prologue; therefore, past 

violent conduct can be competent evidence which is legally and factually sufficient 
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to sustain the award of a protective order.”); Matter of Frasure, No. 05-13-01667-

CV, 2015 WL 459223, at *6 (Tex. App.—Dallas Feb. 4, 2015, no pet.) (mem. op.). 

This Court has held that evidence of an on-going pattern of past violence is not 

required; even a single event may suffice. Boyd, 425 S.W.3d at 432 (“The statutory 

language of Title IV does not require that a likelihood finding be based on more 

than one act of family violence.”); see also Davis v. Sampson, No. 01-10-00604-

CV, 2011 WL 6306639, at *6 (Tex. App.—Houston [1st Dist.] Dec. 15, 2011, no 

pet.) (mem. op.).

1. Legal sufficiency

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

shows that Sam had been physically aggressive with Miriam in the past, including 

repeatedly slapping her and knocking her down after grabbing her neck. In addition

to past physical contact, there was extensive evidence regarding Sam’s email 

communications with Miriam. 

Miriam and Rice University Police Officer Y. Avalos testified about

Miriam’s requests that the campus police contact Sam and instruct him to stop 

contacting her, as well as the officers’ efforts to do so. The police incident report 

recounts multiple occasions when the police instructed Sam to stop contacting 

Miriam, Sam agreed to do so, then Sam sent Miriam additional emails in defiance
14

of those instructions. On some occasions, the emails came within hours of the call 

from the campus police. 

In his emails, Sam stated that he was “equipped” to teach Miriam a life 

lesson and would not be stopped from doing so. Sam wrote that he was “about to 

teach” Miriam a lesson “the hardest way I am capable of . . . I have no mercy on 

garbage kids like you.” He further stated that “he would cut [her] into peaces [sic] 

and no one would be able to do anything about it” and that “he would barbecue” 

her. In response to her email instructing him to “stop threatening” her, he 

responded, “I do not threaten, kid. I warn and execute sanctions . . . .” Miriam 

testified that these emails scared her and she believed he was going to hurt her. 

In light of Sam’s past aggression and his harassing and threatening emails—

defying requests by Miriam and campus police to stop contact—there was legally 

sufficient evidence from which the trial court could conclude that it was likely that 

Sam, if not enjoined, would commit future acts of family violence against Miriam. 

2. Factual sufficiency

While past violence can be factually sufficient evidence to find a likelihood 

of future violence, Boyd, 425 S.W.3d at 432, Miriam’s evidence was not limited to 

past acts. Sam’s emails provided additional evidence. 

Sam testified that he did not intend his emails to be threatening. He 

explained that they were meant to be “educational” and to address her “lies” and 
15

“deceit.” He also testified that English is his third language and that he often 

“run[s] into problems with [his] choice of vocabulary.” He explained,

In an attempt to avoid translating . . . from Arabic to English and try 

to recollect the vocabulary database that I have learned so far—and 

you can see how I’m trying to assemble the answer for you because 

my brain at time just do—go out of control and do operating in Arabic 

language and I need to be on the fly capable to translate my thoughts 

or my answers in a constructive . . . 

It was within the trial judge’s province to disbelieve Sam’s explanation that 

the threatening tone in his emails was the result of translation errors. The trial 

judge was free to infer from Sam’s emails that he intended to threaten Miriam. 

Lakner, 2011 WL 1233381, at *4. 

There was evidence that Sam—who lived part-time in the Houston area—

had come to Miriam’s apartment after being instructed to have no contact with her 

and had unsuccessfully attempted to do so again. Accordingly, the trial judge could 

infer that Sam’s threats presented a risk of future harm. Cf. Davis v. Sampson, No. 

01-10-00604-CV, 2011 WL 6306639, at *5 (Tex. App.—Houston [1st Dist.] Dec. 

15, 2011, no pet.) (mem. op.) (concluding that threats by ex-boyfriend, who lived 

in another state, “reasonably could be understood to threaten imminent physical 

harm” because his texts indicated he was en route at time they were sent).

The evidence of past violence and threats of future violence was not so weak 

as to cause the trial court’s finding of a likelihood of future violence to be clearly 

wrong or manifestly unjust. See Ortiz, 917 S.W.2d at 772; Persley, 261 S.W.3d at 
16

319. Thus, the trial court’s finding on this issue is supported by factually sufficient 

evidence.

We overrule Sam’s third issue.

Evidence of Emotional Harm

In his first issue, Sam contends that there was an improper rendition of a 

protective order against him because the trial court expanded the definition of 

family violence to include threats of emotional harm by admitting otherwise 

irrelevant evidence. 

We have already concluded that the evidence was legally and factually 

sufficient to affirm a finding that Sam has committed family violence, as defined in 

section 74.001 of the Texas Family Code, and that he is likely to commit family 

violence in the future in the absence of a protective order. In light of these 

conclusions, the issue of whether threats of emotional harm would also support the 

issuance of a protective order is unnecessary to the resolution of this appeal and is, 

therefore, moot.

Further, to the extent Sam’s objection can be understood to challenge the 

trial court’s ruling allowing testimony of “emotional and psychological” abuse and 

“control,” the trial court’s ruling on the admissibility of such evidence will not be 

overturned absent an abuse of discretion. See Serv. Corp. Int’l v. Guerra, 348 

S.W.3d 221, 235 (Tex. 2011) (“We review a trial court’s decision to admit 
17

evidence for an abuse of discretion.”); In re J.P.B., 180 S.W.3d 570, 575 (Tex.

2005). An appellate court must uphold the trial judge’s evidentiary ruling if there is 

any legitimate basis for it. Owens–Corning Fiberglas Corp. v. Malone, 972 S.W.2d 

35, 43 (Tex. 1998).

Sam asserted a relevancy objection to testimony about his “emotional and 

psychological” abuse and “control” over Miriam. Specifically, he objected that 

Officer Avalos, who assisted Miriam in directing Sam to cease contact, did not 

have personal knowledge of any relevant information because she did not observe 

him assaulting or threatening Miriam. Next, he objected to Officer Avalos reading 

from an email he sent to her, stating that he “will not tolerate [the officer] 

interfering” with his relationship with his daughter or telling him how to “raise and

conduct” himself with Miriam. He also objected to Miriam’s testimony that Sam 

had removed $1,000 from her bank account. Miriam testified that the dispute over 

the money was about her father “[c]ontrolling me to do what he wants” and that, 

when she does not do so, “it escalates.” 

Evidence that is irrelevant is not admissible; on the other hand, evidence that 

is relevant is admissible unless excluded by other rules or statutes. TEX. R. EVID.

402. Evidence is relevant if it has “any tendency to make the existence of any fact 

that is of consequence to the determination of the action more probable or less 

probable than it would be without the evidence.” TEX. R. EVID. 401. In determining 
18

relevancy, we look at the purpose for offering the evidence. A logical 

connection—either direct or inferential—between the fact offered and the fact to 

be proved satisfies the relevancy test. Clark v. Randalls Food, 317 S.W.3d 351, 

357 (Tex. App.—Houston [1st Dist.] 2010, pet. denied); Serv. Lloyds Ins. Co. v. 

Martin, 855 S.W.2d 816, 822 (Tex. App.—Dallas 1993, no writ.). 

We conclude that the trial court did not abuse its discretion in overruling 

Sam’s relevancy objections. Miriam testified that Sam disregarded instructions 

from her and campus police to cease contact with her and that she believed the 

harassment would continue unless a protective order was issued. Officer Avalos’s 

testimony was relevant to that assertion. Further, Miriam testified that her 

relationship with her father was deteriorating during this time and he was 

becoming “increasingly hostile and nonsensical.” Relatedly, she averred that Sam’s 

emails were “growing more and more desperate and scary” and were placing her 

“in fear of [her] physical and emotional safety.” Evidence that Sam removed a 

substantial amount of money from the working student’s bank account was 

relevant to the assertion of escalating tensions.

Having concluded that the trial court did not err in overruling Sam’s 

relevancy objections, we overrule Sam’s first issue.
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Trial Judge’s Conduct

In his final issue, Sam contends that the trial judge was texting during his 

testimony. He argues that her actions “undoubtedly diminished [her] ability to fully 

listen to and consider [his] testimony during trial” and likely caused the “rendition 

of an improper judgment.” We understand Sam’s contentions to either assert a 

sufficiency challenge or to challenge the denial of his new-trial motion, in which 

he argued the same point.

Having already concluded that the evidence was legally and factually 

sufficient to support the trial court’s findings and the issuance of a protective order, 

we will address whether the second judge erred in denying Sam’s motion for new 

trial based on the texting allegation.

A. Standard of review

A court has broad discretion to grant a motion for new trial and may do so 

“for good cause.” TEX. R. CIV. P. 320; In re Columbia Med. Ctr. of Las Colinas, 

Subsidiary, L.P., 290 S.W.3d 204, 210 (Tex. 2009). The denial of a new-trial 

motion is reviewed for abuse of discretion. Waffle House, Inc. v. Williams, 313 

S.W.3d 796, 813 (Tex. 2010); Sozanski v. Plesh, 394 S.W.3d 601, 604 (Tex. 

App.—Houston [1st Dist.] 2012, no pet.). A trial court abuses its discretion if it 

acts without reference to any guiding rules or principles or fails to correctly 
20

analyze or apply the law. Celestine v. Dep’t of Family & Protective Servs., 321 

S.W.3d 222, 235 (Tex. 2010); Sozanski, 394 S.W.3d at 604.

B. Reviewing judge did not abuse discretion

Sam submitted an affidavit, attached to his motion for new trial, alleging that 

he testified for approximately 30 minutes at the protective-order hearing and that 

“[o]n at least three separate occasions, while [he] sat in the witness chair testifying 

in [his] defense, [he] viewed [the trial judge] ‘texting’ on what appeared to be a 

cell phone . . . .” Sam argued that the activity distracted the judge from hearing his 

testimony. Thus, he asserted that the judge was unable to process enough of his

testimony to understand his side of the story or evaluate his credibility. 

Sam offered no evidence regarding the length of time he alleges the judge 

was “distracted” by each text. He offered no evidence regarding whether these 

were quick replies or lengthy communications. Nor have we been told which 

portions of Sam’s testimony he alleges were compromised. Cf. Menard v. State, 

193 S.W.3d 55, 60 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (stating that, 

on allegation that juror had been sleeping and missed testimony, “trial court should 

consider whether ‘the sleeping juror missed large portions of the trial or [whether] 

the portions missed were particularly critical.’” (citing United States v. Freitag, 

230 F.3d 1019, 1023 (7th Cir. 2000))).
21

At the conclusion of the protective-order hearing, the trial judge specifically 

addressed Sam’s characterization of his daughter’s behavior as involving “deceit” 

and “lies.” She stated that she did not find that the evidence supported those

assertions. She also called into question Sam’s contention that his emails may have 

been misconstrued due to translation errors. These statements by the trial judge—

specifically addressing the contentions Sam made while testifying—belie his 

allegation that she had not effectively heard his testimony. 

Given the lack of evidence developed on the issue and the trial court’s 

contemporaneous statements demonstrating comprehension and recall of Sam’s 

testimony, we conclude that the reviewing judge did not abuse his discretion in 

denying Sam’s new-trial motion on this issue.

Conclusion

We affirm the judgment of the trial court.

Harvey Brown

Justice

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