Velasquez v. Rayon

1

DIEGO VELASQUEZ, Appellant v. REGINA RAYON, Appellee

No. 05-21-01165-CV

Court of Appeals of Texas, Fifth District, Dallas

June 21, 2023

On Appeal from the 429th Judicial District Court Collin County Texas Trial Court Cause No. 429-54051-2021

Before Justices Partida-Kipness, Nowell, and Kennedy

MEMORANDUM OPINION

ROBBIE PARTIDA-KIPNESS, JUSTICE

Appellant Diego Velasquez appeals a family-violence protective order issued under Title 4 of the Texas Family Code. In two issues Velasquez contends the protective order should be vacated because the trial court did not make the statutorily-required findings that family violence occurred and is likely to occur in the future, and the evidence is legally and factually insufficient to support such findings. Because we agree the trial court did not make the required finding that family violence is likely to occur in the future, we vacate the trial court's order and dismiss the case. We note that nothing in this opinion prevents appellee Regina Rayon from seeking further relief from the trial court in the form of a new protective order.

BACKGROUND

Velasquez is Regina Rayon's step-father.^[1] On July 12, 2021, Regina filed an application for protective order against Velasquez.^[2] In it, Regina alleged that in 2019 Velasquez "would have his pants unbuttoned with his penis showing." Regina was eighteen years old when she filed the Application. She sought and obtained a temporary ex parte protective order and one extension of the temporary order. Velasquez moved to vacate the temporary order. Regina also filed a supplemental application for protective order that included a one-page, written narrative^[3] signed by Regina. She states in the narrative that "There were 3 occassions [sic] where I felt super uncomfortable with diegos [sic] action." The first occasion was when she saw Velasquez in the home wearing "blue plaid pajama pants with about 3 crouch [sic] buttons unbuttoned." Regina stopped what she was doing and left the room. On another occasion, Velasquez stood at the top of the stairs and looked at Regina while she was on the toilet with the bathroom door open. She slammed the door shut. The final occasion occurred around 6 a.m. when Regina was eating breakfast before school. Regina states that she saw Velasquez laying on the couch with his tablet. She looked at the tablet and saw he was watching pornography and scrolling for more videos. She left the room.

On August 13, 2021, the trial court held a hearing on the Application.^[4] Regina testified she had encounters in the past with Velasquez "of a sexual nature." She described the three incidents included in the narrative filed with her supplemental application. She also agreed that the encounters made her "very" uncomfortable. She testified that she is afraid of Velasquez because of the incidents. All of the encounters occurred when she was living in Velasquez's home. At the time of the hearing, Regina no longer lived at the same address as Velasquez. When asked if she plans on having any future visits or communication with Velasquez, she answered "No."

Velasquez also testified at the hearing. He stated that he had never exposed himself to Regina or her sisters and never made any sort of sexual advances to any of the girls. When asked if he will need to see Regina any time in the future, he answered "No." When asked if he expects that Regina "will be invited" to his home any time in the future, Velasquez also answered "No."

At the conclusion of the hearing, the trial court made the following findings on the record:

Having heard the testimony of the applicants and of the respondent today, the Court finds that the pro -- a protective order will be appropriate for the daughters.

I do not find that there -- that the stalking -- the application describes stalking as the offensive conduct; that is, the family violence. I don't find that that supports a protective order. However, I believe that under the definition of family violence, it is included that a person -- a member of a household may intentionally make -- an act by a member of the household against another member of the household 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, but does not include defensive measures to protect one's self.

The Court finds that three young women were placed in a position that, by the act of the respondent against each one of them, that they were placed in a position that they could have reasonably believed that -- that they might be sexually assaulted. And, in fact, I think there was some testimony that was very close to actual assault, but I didn't hear any more detail.

So for those reasons, I'm granting the protective orders for the daughters, but not for the mother or the wife -- still the wife of the respondent.

The trial court signed a Final Protective Order on December 7, 2021, and made the following findings in it:

The Court finds that family violence has occurred. The Court finds that Respondent, Diego Velasquez, has committed family violence. The Court finds that the following protective orders are for the safety and welfare and in the best interest of Applicant Regina Rayon and are necessary for the prevention of family violence[.]

The Final Protective Order prohibited Velasquez from doing the following:

. Committing family violence assault or sexual assault in fear of eminent body harm, as defined by section 71.004 of the Texas Family Code.

. Communicating directly with Regina in a threatening or harassing manner.

. Communicating a threat through any person to Regina.

. Communicating in any manner with Regina except through his attorney.

. Going to or near the residence or place of employment or business of Regina.

. Engaging in conduct directed specifically toward Regina that is reasonably likely to harass, annoy, alarm, abuse, torment, or embarrass her.

The trial court also ordered that Velasquez's license to carry a concealed handgun be suspended and prohibited him from possessing a firearm or ammunition. The Final Protective Order is in effect until August 13, 2023.

Velasquez timely appealed the Final Protective Order. Regina did not file a brief in this proceeding or otherwise appear.

STANDARD OF REVIEW

We review the sufficiency of the evidence supporting a protective order under the same standard used in evaluating the evidence to support a jury verdict. Dolgener v. Dolgener, 651 S.W.3d 242, 256 (Tex. App.-Houston [14th Dist.] 2021, no pet.); accord Pleasant v. Black, No. 05-20-01040-CV, 2022 WL 807190, at *4 (Tex. App.-Dallas Mar. 17, 2022, no pet.) (mem. op.).

In reviewing a legal sufficiency challenge, we consider whether the evidence at trial would enable a reasonable and fair-minded factfinder to reach the verdict under review. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). Evidence is legally insufficient to support a finding only when (1) the record bears no evidence of a vital fact, (2) the rules of law or of evidence bar the court from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence establishes conclusively the opposite of a vital fact. Shields LP v. Bradberry, 526 S.W.3d 471, 480 (Tex. 2017). We consider evidence favorable to the finding if a reasonable factfinder could and disregard contrary evidence unless a reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007). All the record evidence must be considered in the light most favorable to the party in whose favor the verdict has been rendered, and every reasonable inference deducible from the evidence is to be indulged in the prevailing party's favor. Gunn v. McCoy, 554 S.W.3d 645, 658 (Tex. 2018).

When reviewing a factual sufficiency challenge, a court of appeals sets aside the finding only if, after considering and weighing all of the evidence in the record pertinent to the finding, it determines the credible evidence supporting the finding is so weak, or so contrary to the overwhelming weight of all the evidence, that the answer should be set aside and a new trial ordered. Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 615 (Tex. 2016). The factfinder is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. Vives v. Gersten, No. 05-13-01463-CV, 2014 WL 7498016, at *3 (Tex. App.-Dallas Dec. 29, 2014, no pet.) (mem. op.) (citing GTE Mobilnet of S. Tex. LP v. Pascouet, 61 S.W.3d 599, 615-16 (Tex. App.-Houston [14th Dist.] 2001, pet. denied)). We will not substitute our judgment for the trial court's merely because we might reach a different conclusion. Id.

ANALYSIS

In two issues, Velasquez challenges the legal and factual sufficiency of the evidence to support the Final Protective Order. We address his second issue first because the resolution of that issue is dispositive. In his second issue Velasquez contends the protective order should be vacated because the trial court did not make the statutorily-required finding that family violence is likely to occur in the future, and the evidence is legally and factually insufficient to support a finding that family violence is likely to occur in the future.

Section 82.002 of the Texas Family Code allows a person to file an application for a protective order to protect against family violence. Tex. Fam. Code § 82.002 (setting out who may file application for protective order and under what circumstances); Id. § 71.004 (defining "family violence"). "A court shall render a protective...