Roper v. Jolliffe, 05–14–00500–CV

• Citation: 493 S.W.3d 624
• Decision Date: 09 October 2015
• Docket Number: No. 05–14–00500–CV,05–14–00500–CV
• Parties: Marcus Joseph Roper, Appellant v. Katherine Elizabeth Jolliffe, Appellee
• Court: Court of Appeals of Texas

493 S.W.3d 624

Marcus Joseph Roper, Appellant

v.Katherine Elizabeth Jolliffe, Appellee

No. 05–14–00500–CV

Court of Appeals of Texas, Dallas.

Opinion Filed October 9, 2015

Rehearing Overruled November 18, 2015

Rehearing En Banc Overruled December 29, 2015

J. Michael Price II, Dallas, TX, Arturo Munoz Holquin, Austin, TX, for appellants.

Kimberly Duncan, Carla Bean, Dallas, TX, for appellees.

Before Justices Evans, Brown, and Stoddart

OPINION

Opinion by Justice Stoddart

This is a statutory appeal from an order granting a family violence protective order. See Tex. Fam. Code Ann. § 85.001 (West 2014)

. The trial court denied Marcus Joseph Roper's request for a jury and held an evidentiary hearing. The court found Roper committed family violence in the past and was likely to do so in the future against his fiancée Katherine Elizabeth Jolliffe. Roper appeals pursuant to family code section 81.009(a). Id. § 81.009(a).

Roper brings four issues on appeal. He argues: (1) the trial court abused its discretion by denying his request for a jury trial; (2) he was denied due course of law when the trial court limited discovery and applied a preponderance of the evidence standard of proof; (3) he was entitled to additional discovery and a higher standard of proof because the protective order procedure burdens his right to keep and bear arms; and (4) the batterer's intervention program required by statute and the terms of the protective order violate his right against self-incrimination. We overrule Roper's four issues and affirm the trial court's protective order.

Background

Roper and Jolliffe met in college and began dating. In November 2012, they became engaged. They moved into an apartment together in May 2013. However, they had problems in their relationship. Jolliffe testified Roper was “very emotionally and mentally and physically abusive.” Several times during their relationship, Roper became angry, grabbed Jolliffe's wrists and applied “strong pressure and control” even after she asked him to stop. On one occasion, Roper squeezed her so tightly she could not breathe.

Due to their ongoing problems, Jolliffe moved out of the apartment at the end of September 2013. Jolliffe did not have a place to live, so she stayed about half the time with a friend and half the time with Roper. On November 6, 2013, Jolliffe and Roper met at his apartment to talk before a planned counseling session the next day. When Jolliffe arrived, Roper offered her a glass of wine, which she refused because she had a glass of wine earlier at happy hour. Roper became angry with her for refusing the wine and not telling him she was going to happy hour. He also was angry Jolliffe planned to attend a party later in the week without him. Roper went into his room.

After waiting for a while, Jolliffe realized Roper was not coming back out, so she went into his room to say good night. Roper was asleep, but she kissed him and told him she was leaving for the night. He woke up and became angry she was not staying. Jolliffe went to the kitchen to put on her boots, and Roper followed her. He asked when Jolliffe was moving back in with him. She said, “Once we figure out our issues and work through these problems.” Roper then said, “Give me back the fucking ring.” Before she could respond, Roper tackled her, and she landed on the floor in the dining room. Roper pinned her to the ground, twisted her arms and shoulders, and tried to remove the ring from her finger. Jolliffe screamed for him to stop, but he continued until she threatened to scream loudly enough for the police officer next door to hear.

Roper released Joliffe. When she was on her knees trying to get up, he screamed, “You fucking bitch, this relationship is over,” grabbed her right arm, and pulled it back so hard they heard her shoulder “pop.” Roper released her arm. He then grabbed her purse and threw it over her head. Jolliffe gathered her things, tried to call a friend, and left the apartment. Jolliffe went to another friend's apartment in the same complex and called the police. The police responded and reported that Jolliffe was crying, shaking, and visibly upset. They took a statement from her, completed a “lethality screen form,” noted visible marks on her body, and took photographs of red marks on her arm, back, and shoulder. Jolliffe stated she was not injured and declined transport to the hospital. The officers were unable to make contact with Roper.

On November 13, 2013, Jolliffe met with the district attorney's office and filed an application and affidavit for a protective order against Roper. A temporary ex parte protective order was signed by the trial court on November 18, 2013. A hearing was set on the final protective order for November 26, 2013.

Roper was served with notice of the application, the ex parte order, and a copy of the application for protective order on November 20, 2013. The notice advised Roper of the punishment for violating the order, the date for the hearing on the final protective order, and his right to hire an attorney. In addition to filing an answer and a motion for expedited discovery, Roper requested a jury trial. The trial court granted Roper limited discovery but denied his request for a jury trial.¹ After three extensions of the temporary ex parte order, the final hearing was held on January 28 and 29, 2014.

Roper did not testify. Instead he offered the testimony of a clinical psychologist who, after performing an assessment of Roper, concluded that he was at low risk of committing future acts of violence. However, she could not say there was no future risk. Ultimately, the trial court found that family violence had occurred in the past and was likely to continue in the future. The trial court granted the protective order on January 29, 2014. The order prohibits Roper from committing family violence against Jolliffe; communicating directly with her or her family in a threatening or harassing manner; communicating a threat to her; going within 500 feet of her residence, place of employment, or school; engaging in conduct directed toward her reasonably likely to harass, annoy, alarm, abuse, torment, or embarrass her; and possessing a firearm. The protective order also requires Roper to complete a Batterer's Intervention and Prevention Counseling Program (BIPP). The protective order is effective for two years.

Roper moved to stay the BIPP requirement pending exhaustion of his appeals, which the trial court granted. Roper's motion for new trial was denied after a non-evidentiary hearing.

Analysis

A. Denial of Request for Jury Trial

In his first issue, Roper argues the trial court abused its discretion by denying his request for a jury trial. He contends he has the right to a jury trial under the Texas Constitution and timely requested a jury under the rules of civil procedure. See Tex. Const. arts. I, § 15

, V, § 10 ; Tex. R. Civ. P. 216. We review the trial court's denial of a request for a jury trial for an abuse of discretion. Mercedes–Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex.1996). We consider the entire record and determine whether the trial court's decision is arbitrary, unreasonable, and without reference to guiding principles. Id.

1. Title 4 Protective Orders

Title 4 of the family code, titled “Protective Orders and Family Violence,” was originally passed in 1979 and establishes the procedure for issuance and enforcement of family violence protective orders. See Act of April 19, 1979, 66th Leg., R.S., ch. 98, § 11, 1979 Tex. Gen. Laws 182, 185, repealed and reenacted by Act of April 21, 1997, 75th Leg., R.S., ch. 34, §§ 1, 2, 1997 Tex. Gen. Laws 76, 76, 88 (current version at Tex. Fam. Code Ann. §§ 71.001

–92.001 (West 2014) ). The legislature's stated intent was to “reduce the high incidence of deaths and injuries sustained by law enforcement officers in handling family disturbances and to aid law enforcement officers in protecting victims of family violence from serious or fatal injuries.” Act of April 19, 1979, 66th Leg., R.S., ch. 98, § 1, 1979 Tex. Gen. Laws 182, 182 (repealed and reenacted 1997).

The statutory definition of “family violence” includes “dating violence.” Tex. Fam. Code Ann. § 71.004(3)

. “Dating violence” includes violence against a victim with whom the actor is in a dating relationship. See id. § 71.0021(a).² Dating violence means an act, other than a defensive measure, committed against a victim intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the victim in fear of imminent physical harm, bodily injury, assault, or sexual assault. Id. There is no dispute that Roper and Jolliffe were involved in a dating relationship. See id. § 71.0021(b).

The applicant for a protective order is entitled to a hearing not later than fourteen days after the date of filing an application unless the applicant requests a later date. Id. § 84.001(a). At the close of the hearing on the application for a protective order, the trial court must find whether family violence has occurred and is likely to occur in the future. Id. § 85.001(a). If the court makes those findings, it must render a protective order applying to the person found to have committed family violence. Id. §§ 81.001, 85.022. Generally, a protective order is effective for a period not to exceed two years. Id. § 85.025(a). The respondent may move to terminate the protective order after its first anniversary. Id. § 85.025(b). Despite the statute's language indicating that the court is the fact finder for protective orders, Roper argues he was entitled to a jury trial.

The Fort Worth Court of Appeals has addressed whether there is a right to a jury trial in Title 4 protective order proceedings. See Williams v. Williams, 19 S.W.3d 544, 546 (Tex.App.–Fort Worth 2000, pet. denied)

. The Williams court examined the language of Title 4 and concluded it was clear and unambiguous. Id. at 546–47. Interpreting sections 81.001 and 85.001(a), ...