R.S. v. D.R.T.

1

R.S., Appellant v. D.R.T., Appellee

No. 01-22-00701-CV

Court of Appeals of Texas, First District

December 28, 2023

On Appeal from the 280th District Court Harris County, Texas Trial Court Case No. 2021-49103

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

MEMORANDUM OPINION

Terry Adams Chief Justice

Appellant R.S.^[1] appeals 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 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.

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., RS. 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 RS.

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.

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.RS.'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., RS.'s ex-wife, testified that they have a child who is now 15 years old. S.B. testified that she had no concerns about RS.'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 RS.'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 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 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]

RS. 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 [RS.'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 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).^[4] If a party fails to do this, the complaint cannot be considered on appeal. See Bushell v. Dean, 803 S.W.2d 711, 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.

[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 c

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