Culver v. Culver

• Decision Date: 15 December 2011
• Docket Number: No. 06–10–00112–CV.,06–10–00112–CV.
• Citation: 360 S.W.3d 526
• Parties: Kerri Sue Hass CULVER, Appellant, v. Billy Ray CULVER, Appellee.
• Court: Texas Court of Appeals

360 S.W.3d 526

Kerri Sue Hass CULVER, Appellant,

v.Billy Ray CULVER, Appellee.

No. 06–10–00112–CV.

Court of Appeals of Texas, Texarkana.

Submitted: Oct. 3, 2011.Decided: Dec. 15, 2011.

Kerri Sue Hass Culver, Mineola, pro se.

Jim Wheeler, Wood County Dist. Atty., Thomas J. Burton, Special Asst. Dist. Atty., Quitman, for appellee.

Before MORRISS, C.J., CARTER and MOSELEY, JJ.

OPINION

Opinion by Chief Justice MORRISS.

Kerri Sue Hass Culver has filed a motion for rehearing.¹ This opinion on rehearing is issued as a substitute for our original opinion issued October 21, 2011.

With an action for divorce apparently pending,² Billy Ray Culver sought and obtained a protective order against his wife, Kerri. Kerri appeals the protective order, employing nine points of error. We affirm the trial court's order based on our nine principal holdings:

(1) Issuing the protective order was not an abuse of discretion,

(2) refusing Kerri's motion for discovery was not error,

(3) denying Kerri's motions for continuance was not error,

(4) this case is not reversible for ineffective assistance of counsel,

(5) this case is not subject to the Brady³ rule,

(6) Kerri has not established misconduct by opposing counsel,

(7) Kerri's second motion to recuse did not trigger mandatory referral,

(8) failing to file findings of fact and conclusions of law was not reversible error, and

(9) we cannot reverse the trial court without reversible error.

Billy filed an application for a protective order August 30, 2010, alleging Kerri had committed family violence and would likely commit family violence in the future. Billy requested an order that Kerri not commit family violence against Billy or Billy's parents; not communicate with any of those three; not go within 200 yards of any of the three; not go within 200 yards of the residence, workplace, or school of any of those three; and not stalk any of them. The application was accompanied by an affidavit alleging facts constituting family violence. The trial court issued an ex parte temporary protective order and set a hearing on the application for September 10, 2010. Notice of the application for protective order was served on Kerri August 31, 2010. On September 8, 2010, Kerri filed a general denial, a motion for discovery, and a motion for continuance.

The trial court's hearing began September 10, 2010, with Kerri representing herself. Billy's application for a protective order was prosecuted by the District Attorney's Office on Billy's behalf. In the middle of the hearing, Kerri made an oral motion to recuse the trial judge, alleging bias. The district attorney argued the motion to recuse was facially invalid and frivolous, as well as orally requesting an extension of the ex parte temporary protective order. The trial court refused to recuse, suspended the hearing, and referred the matter to an administrative judge. The administrative judge found the recusal motion to be untimely and facially insufficient.

The hearing resumed September 28, 2010, with Kerri represented by attorney Jeff Fletcher, whom she had retained the day before. The trial court orally pronounced that it was granting a standard protective order and orally admonished Kerri not to have contact with her husband. The original protective order signed by the trial court was a boilerplate check-the-box form, but all of the boxes were left blank except the box prohibiting possession of firearms.

The district attorney filed a motion for judgment nunc pro tunc, which certifies that a copy was delivered to Kerri. The trial court rendered a judgment titled “nunc pro tunc” September 29, 2010,⁴ which additionally prohibited Kerri from committing family violence against; communicating with; going within 200 yards of; going within 200 yards of the residence, workplace, or school of; and from stalking Billy and Billy's mother. This protective order had the same expiration date as the original temporary protective order—September 27, 2012. On October 1, 2010, Kerri filed a motion for new trial ⁵ and was personally served with a copy of the judgment signed September 27, 2010. On October 20, 2010, Kerri filed a second request for recusal and a motion for continuance. On October 25, 2010, Kerri filed a notice of appeal. On October 28, 2010,⁶ the trial court rendered a second judgment, denoted “nunc pro tunc,” adding Bill's father's workplace to the list of places Kerri was prohibited from going near. On November 8, 2010, ⁷ the trial court held a hearing, during which the district attorney acknowledged Kerri did not have notice and was not present and at which the trial court clarified that Fletcher had been appointed Kerri's attorney in a criminal proceeding, but was not appointed to represent her in the protective-order case.

While her appeal was pending, Kerri filed a petition for writ of mandamus, which this Court denied. In denying mandamus relief, we held that the two judgments “nunc pro tunc” corrected judicial mistakes but, because the trial court still had plenary jurisdiction, were modified judgments. In re Culver, No. 06–11–00028–CV, 2011 WL 1136788, 2011 Tex.App. LEXIS 2236 (Tex.App.-Texarkana Mar. 29, 2011, orig. proceeding) (mem. op.).

1. Issuing the Protective Order Was Not an Abuse of Discretion

In two of her points of error, Kerri complains that the evidence is insufficient to support the protective order.⁸

Kerri argues the evidence is factually insufficient because the 9–1–1 tape and police reports “establishe[s] the opposite of a vital fact.” The 9–1–1 recording and police reports were not admitted into evidence.⁹ Kerri argues that Billy admitted he had not been placed in fear of his life and that Kerri had plenty of time to hurt him before the arrival of the police. Billy, though, was not required to prove he was placed in fear of his life.¹⁰ The statutory definition of “family violence” required only that Billy was placed in fear of physical harm or bodily injury, or that an assault had occurred.

To be entitled to a protective order under Title 4 of the Texas Family Code, Billy was required to prove family violence had occurred and would likely occur in the future. Tex. Fam.Code Ann. § 85.001 (West 2008). The Texas Family Code defines “family violence” as

(1) an act by a member of a family or household against another member of the family or 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 oneself;

(2) abuse, as that term is defined by Sections 261.001(1)(C), (E), and (G), by a member of a family or household toward a child of the family or household; or

(3) dating violence, as that term is defined by Section 71.0021.

Tex. Fam.Code Ann. § 71.004 (West 2008).

Because a protective order is in the nature of a civil injunction, ¹¹ this Court has held a protective order should be reviewed for an abuse of discretion. See In re Epperson, 213 S.W.3d 541, 542–43 (Tex.App.-Texarkana 2007, no pet.) (noting split of authority). A trial court abuses its discretion if it acts without reference to any guiding rules and principles or reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex.1985).

Billy introduced sufficient evidence that Kerri committed an act intended to result in placing Billy in fear of imminent physical harm, bodily injury, or assault. Billy testified ¹² concerning an argument he and Kerri had “at the house she owns in Enchanted Lakes” concerning “her involvement in dog rescue and it consuming our life completely.” Billy left and started walking “towards Mineola” on the “blacktop road back towards 69.” Billy testified Kerri was “hysterical” and followed him in a car. According to Billy, Kerri “started basically trying to run me off the road to make me stop and then she came close to hitting me a couple of times.” Billy testified that Kerri ran him into the ditch several times and that he had to walk into the woods to get around her car. When he was able to get a cell phone signal, Billy called the police. Billy stayed on the phone with the police dispatcher until the police arrived approximately forty-five minutes later. When asked, “Were you in fear that you were going to be struck with that vehicle,” Billy responded, “At several times, yes, sir.” Billy admitted, on cross-examination, the police did not arrest Kerri, but merely told her to go home and then gave Billy a ride to his parents' house. When asked, during cross-examination at the second hearing, “[W]e can agree that if she wanted to run over you with her car, she could have gotten that done that day, couldn't she?” Billy responded, “I suppose she could.” The trial court could have reasonably concluded Kerri's actions caused Billy to fear imminent bodily injury.

Billy also introduced evidence that Kerri had assaulted him. This Court has held “[t]he definition of assault is the same, whether in a civil or criminal trial.” Rogers v. Peeler, 146 S.W.3d 765, 769 (Tex.App.-Texarkana 2004, no pet.); see Waffle House, Inc. v. Williams, 313 S.W.3d 796, 801 n. 4 (Tex.2010). A person commits assault under the Texas Penal Code if the person intentionally, knowingly, or recklessly causes bodily injury to another, intentionally or knowingly threatens another with imminent bodily injury, or intentionally or knowingly causes physical contact when the person knows or should reasonably believe the other will regard such contact as offensive or provocative. Tex. Penal Code Ann. § 22.01 (West 2011).

On August 18, 2010,¹³ Kerri showed up at Billy's parents' house and entered uninvited through the back door. When asked to leave, Kerri did leave, but returned approximately ten minutes later. Kerri entered the house a...