Harter v. Harter

1

STEVEN SCOTT HARTER, Appellant v. ROSARIO HARTER, Appellee

No. 14-23-00340-CV

Court of Appeals of Texas, Fourteenth District

December 10, 2024

On Appeal from the 328th District Court Fort Bend County, Texas Trial Court Cause No. 22-DCV-298625

Panel consists of Justices Jewell, Bourliot, and Zimmerer.

MEMORANDUM OPINION

Kevin Jewell Justice

Steven Scott Harter appeals from a protective order granted to Rosario Harter. In his first issue, he contends that the trial court deprived him of due process by refusing to enforce subpoenas. In his second issue, he asserts the trial court abused its discretion by excluding a police officer's body camera video. He challenges the legal and factual sufficiency of the evidence in his third issue, and he argues that the trial court's errors harmed him in his fourth and final issue.

First we hold that legally and factually sufficient evidence supports the protective order, so we overrule Steven's third issue. Further, we reject his remaining issues because the record does not demonstrate either preservation of error or harm.

We affirm the protective order.

Background

Rosario Harter filed an application for a protective order on November 6, 2022, seeking protection for herself and her 15-year-old son, "Jake,"^[1] from her long-term boyfriend, Steven Harter, based on Steven's alleged domestic violence. Rosario and Steven were never married, and during the course of their twenty-year relationship, Steven was married to another woman. The trial court granted an ex parte temporary protective order to Rosario and Jake, which was extended until the time of the protective order hearing. At the hearing, the following evidence was presented.

According to Rosario, early in the morning of September 30, 2022 Steven sexually assaulted her (the "Sexual Assault"). The next evening, Steven and Rosario had an argument during which Steven forcibly restrained Rosario by pressing down on her chest, impeding her ability to breathe (the "Restraint"). She did not contact police or seek medical aid until October 4, when her sister, Raquel took her to a nearby emergency room because Rosario was in pain and having trouble eating.

After Rosario described the Restraint, hospital staff contacted police. Katy Police Department ("KPD") Officer Soto was dispatched to the hospital to interview Rosario. Both Rosario and Raquel were present when Officer Soto and his colleague, Officer Gore, conducted the interview. Rosario told Officer Soto about the Restraint, but she did not tell the officers about the Sexual Assault. Officer Soto described Rosario as distressed crying, and sad. She told him that Steven was intoxicated and she tried to prevent him from leaving in his car. They argued, and Steven got on top of her and pressed his arms against her chest, pressing down on her and making it difficult for her to breathe. Rosario twice denied she was choked, and she admitted that she bit and kicked Steven.

Officer Soto testified that Rosario's injuries were consistent with her description of the incident. The officer photographed her injuries, and even though the pictures were taken several days after the incident, Rosario had red markings and bruising on her face, upper torso, chest, and back.

On cross-examination, Officer Soto acknowledged that he thought it was possible Rosario was "on something" or intoxicated when he interviewed her. He also acknowledged that he never interviewed Steven or Jake, who was allegedly present during the assault. Because Officer Soto was not present when the incident occurred, he could not say whether Rosario's injuries could have been from Steven's "defensive measures" to protect himself. After the officer submitted his reports and photographs, the Fort Bend County District Attorney's office accepted charges, and Steven was charged with family violence, impeding breath.

Before the hearing, Steven's counsel issued a subpoena duces tecum to Officer Soto, requiring him to bring to court the body camera video recording of Rosario's interview. Officer Soto did not bring the video with him, which he stated had to be procured through the video's custodian, the KPD records division. Steven, however, possessed a copy of the video because it had been provided to his attorneys as discovery in the ongoing criminal assault case against him. But the copy of the video in Steven's control could be used only for his defense in the criminal proceedings, and no one from the District Attorney's office stated that it could be used in the protective-order proceedings. After considerable discussion on the record, Steven's counsel stated that they were not offering the video into evidence "at this point," and Officer Soto instead watched the video to refresh his recollection before testifying.

Officer Gore testified that Rosario complained of nausea and general pain. He acknowledged that Rosario may have stated she bit and kicked Steven during the incident. He also could not specifically recall seeing any strangulation marks "per se but there was some light bruising around her throat area and her chest." Officer Gore stated that Raquel told the officers that Steven tried to retreat to another room and Rosario followed him. He stated, "It appeared she may have been under the influence of something. I don't know what." But he had no reason not to believe what she was telling them about the Restraint, and he stated her injuries were consistent with the incident she described. He acknowledged that she did not mention that she had been raped, but he stated it is not uncommon for someone not to disclose sexual assaults.

At some point after the officers completed their interview and left, Rosario informed hospital personnel that Steven had raped her. She was sent to another hospital for a rape kit to be collected. KPD Detective Angelica Salinas was assigned to investigate the alleged rape and began investigating the incident around October 3rd or 4th. Detective Salinas testified that the alleged Sexual Assault occurred early in the morning on the same day of the alleged Restraint. She was unaware of the Restraint and did not know about the charges that had been filed related to that incident. Rosario told the detective that, on September 30, she came home around 10:30 p.m., went to Jake's room to say goodnight, then went to sleep. She woke up around 3:30 a.m. with her legs being pulled apart, "forced open by her husband and he sexually assaulted her."

Detective Salinas had not reached out to Steven because she was waiting for the protective order proceedings to be completed; Rosario was scared of Steven and asked the detective to wait before contacting Steven. The detective's investigation into the Sexual Assault was still pending, but she believed Rosario. Rosario told Detective Salinas that Steven sexually assaulted her "on a regular basis" and described other incidents that occurred before the September 30th incident. Rosario seemed afraid and traumatized when the detective interviewed her.

When the detective was questioned about the fact that no semen was found in the rape kit collected from Rosario, she did not consider that unusual, especially because the assault occurred on Friday and Rosario did not go to the doctor until Sunday. When asked why it took Rosario so long to seek medical help, she said Rosario told her she was too scared to say anything until her sister made her go to the doctor because Rosario's chest was sore from an altercation with Steven. The detective was also asked about whether she knew that Rosario had asked for millions of dollars, cars, and a diamond ring to drop the charges against Steven, but Detective Salinas was unaware whether that was true. She also would not have recommended that Rosario travel anywhere alone with Steven after the alleged Sexual Assault.

Rosario's nephew, Julian Luna, was at the scene during the Restraint. From what he saw, Steven "had my aunt pinned down against the bed as in almost like he was choking her and, so, she was being forcibly pinned down by him." Julian testified about the incident:

So, we walked in and I saw both [Jake], Ms. Harter and Mr Harter. My aunt, Ms. Harter, was very distressed. She looked very frail, too, and, so, the first thing we do is that, I go with my mom [Raquel Spinosa, Rosario's sister] and console [Jake] because he as well was very frail and crying. He was very distraught. So, as me and my mother was consoling [Jake], we hear a door slam and we go in and check and we see that the room had been locked. This room was locked and that room had Mrs. Harter and Mr. Harter in there. So, what happened, my mother walked in and knocking on the door and, say, hey, please open up. Nobody answers. So, she has to knock again and start yelling. At this point, when she started yelling, my younger cousin, [Jake], was there and went to another entrance via the pool. He runs out and opens that entrance. Gets through there and he unlocks the door. We [sic] he opens the door, that's when my mother and I walked in. That's where I see Mr. Harter pinning down my aunt, Mrs. Harter, down forcibly on the bed. So, he kept doing that until my mom had to go in and step in, physically step in between the both of them and separate them. . . .

So, as Mr. Harter was pinning down my aunt, my mom had to physically go in. So, she put her left foot in between both of them and she had to use her full body force. She used her hands to grab Mr. Harter's hands off and she had to physically pull him off of my aunt and separate him away from my aunt. . . .

After that point, my mom had told Steve, Mr. Harter, to back away, to leave. Just to calm down the whole situation. She was dealing with him. I was dealing with my aunt. I hugged her and

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