K.D. v. D.D., No. 04-09-00091-CV (Tex. App. 3/3/2010)
| Decision Date | 03 March 2010 |
| Docket Number | No. 04-09-00091-CV.,04-09-00091-CV. |
| Parties | K.D., Appellant, v. D.D., ON BEHALF OF T.D., A Child, Appellee. |
| Court | Texas Court of Appeals |
Appeal from the County Court at Law, Val Verde County, Texas, Trial Court No. 2533, Honorable Sergio J. Gonzalez, Judge Presiding.
AFFIRMED.
Sitting: Catherine STONE, Chief Justice, Karen ANGELINI, Justice, Marialyn BARNARD, Justice.
K.D. ("Kevin") appeals from a final protective order sought by D.D. ("Mother") on behalf of her minor son, T.D. ("Tony").1 Kevin contends (1) the trial court erred in admitting certain hearsay testimony, and (2) the evidence is legally and factually insufficient to establish he committed family violence, or that he was likely to commit family violence in the future. We affirm.
Mother and G.D. ("Father") divorced in 2007. The couple had one minor son, Tony. Mother was awarded primary possession of Tony, and Father was given standard visitation rights. Approximately a year and a half after the divorce, Mother sought a protective order on behalf of five-year-old Tony. In her application for protective order, Mother alleged thirteen-year-old Kevin, who is Father's son from another marriage and Tony's half-brother, engaged in conduct that constituted family violence. Mother claimed that when Tony visited Father, Kevin, who lived with Father, would force Tony to engage in, and watch Kevin engage in, sexual acts. Kevin allegedly threatened Tony with a belt, telling Tony that if Tony told Mother about the abuse, Kevin would "whip his ass" the next time Tony visited.
The trial court granted Mother an ex parte temporary protective order, and set the matter for hearing. At the hearing, Mother testified Tony was "sexually molested" by Kevin. Her testimony was based on information given to her by Tony. Tony also testified and said, "My brother was showing me his Bubba2 under the covers." Tony said this made him feel "very bad."
Father also testified. He stated that during visitation, Tony stays with him in his room. However, he admitted that on one occasion Tony spent the night in Kevin's room—this was confirmed by V.A.D. ("Grandmother"), who testified Father and Kevin reside in her house. Both Father and Grandmother testified they did not know if family violence actually occurred; Father went so far to say that he did not have an opinion on the issue. However, Father admitted Kevin has had other issues. Father testified Kevin has difficulties in school—he does not do the required work and "doesn't really take authority on schooling." Kevin has also been seeing a psychologist for approximately a year—starting before the alleged family violence incident—and has been diagnosed with "repressed anger." Grandmother testified Kevin has an "anxiety disorder" and has been taking Zoloft once a day for more than a year.
Ultimately, the trial court granted a final protective order, finding Kevin had committed family violence and family violence was likely to occur in the future. See Tex. Fam. Code Ann. § 85.001 (Vernon 2008) (). The protective order prohibits Kevin from, among other things: (1) committing family violence, (2) communicating with Tony in a threatening or harassing manner, (3) communicating threats to Tony through another person, (4) engaging in conduct that is reasonably likely to harass, annoy, alarm, abuse, torment, or embarrass Tony, (5) going within five hundred feet of Tony's residence, (6) going within five hundred feet of any place Tony normally attends or resides, and (7) removing Tony from Mother or the jurisdiction. By its terms, the protective order expires in two years.
Kevin first contends the trial court erred in allowing Mother to testify to certain statements made to her by Tony. Kevin argues the statements were inadmissible hearsay.
It is within the trial court's discretion to admit or exclude evidence. Nat'l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex. 2000). Accordingly, a trial court's decision to admit or exclude evidence is reviewed under an abuse of discretion standard. Id. To determine whether a trial court abused its discretion, we must decide whether the trial court acted without reference to any guiding principles; in other words, we must decide whether the decision was arbitrary or unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied, 476 U.S. 1159 (1986). An appellate court may not substitute its own judgment for that of the trial court simply because it disagrees with the court's ruling. Bowie Mem'l Hosp. v. Wright, 70 S.W.3d 48, 52 (Tex. 2002). Even if an appellate court determines the trial court abused its discretion in admitting or excluding evidence, it cannot reverse the trial court's judgment unless the evidentiary ruling was harmful, that is, it probably caused the rendition of an improper judgment. Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 906 (Tex. 2000); see Tex. R. App. P. 44.1(a).
During the hearing, the following exchange occurred:
[Mother's Attorney]: Would you tell the court, before we get into that testimony, what it is you observed? How it was that you came to find out about that?
[Mother]: It was in the evening and [Tony] was already in bed. I had gone back in to tuck him in and to tell him goodnight, and he was acting a little bit weird. He had covers up to his neck. I said, "[W]hat are you doing?" ["]Nothing, nothing, mommy.["]
I said, "[W]hat's going on?" He said, "[N]othing." I noticed that he had reached down under the covers to pull up his pants. And I says [sic], "What are you doing?" He says, "Nothing.["] ["] I was["] — in our family, we — ["][Kevin] touched my private part.["] In my family, we call our private parts "boe-boe." And he says, ["] I was touching my [`]boe-boe.[']" And I said, "Why, where did you learn that?"
At this point, Kevin's attorney objected, stating Kevin contends Mother should not have been allowed to testify to Tony's statements that Kevin touched Tony's private part and Tony was touching his "boe-boe."
"`Hearsay'" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Tex. R. Evid. 801(d). Hearsay is generally inadmissible. Id. R. 802. However, any error in the trial court's admission of evidence is waived if the complaining party allows the same to be introduced without objection. Bay Area Healthcare Group, Ltd. v. McShane, 239 S.W.3d 231, 235 (Tex. 2007) (citing Richardson v. Green, 677 S.W.2d 497, 501 (Tex. 1984)).
Before Kevin objected to Mother's statements about Kevin touching Tony's private parts and Tony's "boe-boe," Mother testified without objection that she learned from Tony that he was "sexually molested" by Kevin. After the objection, Mother continued to testify and stated without objection that Tony told her Kevin had taught him to touch his "boe-boe." She also testified without objection that Tony told her Kevin made Tony watch Kevin masturbate, and made Tony touch him. When Tony tried to turn away, Kevin grabbed his face and forced him to watch. This unobjected to testimony is similar to, and more inculpatory than, the testimony to which Kevin objected. Kevin's objection contested one small portion of the testimony regarding Tony's statements to his Mother about the sexual abuse; most of the testimony on this subject was admitted without objection. We therefore hold Kevin did not properly preserve the hearsay issue for our review. See McShane, 239 S.W.3d at 236.
In his second and third issues, Kevin contends there is legally and factually insufficient evidence to prove he (1) committed family violence, and (2) family violence is likely to occur in the future.3 Both of these findings are required before a trial court can issue a protective order, and in this case the trial court made both required findings. See Tex. Fam. Code Ann. § 85.001.
Findings of fact in a case tried to the court have the same force and dignity as a jury's verdict upon jury questions and are reviewable under traditional legal and factual sufficiency standards. In re Doe, 19 S.W.3d 249, 253 (Tex. 2000); Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991). When the appellant challenges the legal sufficiency of the evidence to support an adverse finding on an issue for which he did not have the burden of proof, the appellant must demonstrate there is no evidence to support the adverse finding. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983). In conducting the legal sufficiency review, the appellate court must view the evidence in the light most favorable to the trial court's finding, crediting favorable evidence if a reasonable fact finder could, and disregarding contrary evidence unless a reasonable fact finder could not. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). The evidence is legally sufficient if it would enable a reasonable and fair-minded fact finder to reach the finding under review. Id. at 827.
When reviewing the factual sufficiency on an issue on which the appellant did not have the burden of proof, the appellate court considers and weighs all of the evidence in a neutral light, and may set aside the judgment only if the evidence that supports the challenged finding is so weak as to make the judgment clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). Although the evidence is reviewed in a neutral light, the reviewing court may not impose its opinion so as to displace the fact finder's credibility determinations. See Golden...
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