Opinion issued July 25, 2019
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-18-00730-CV ——————————— BRIAN WILLIAMS, Appellant V. SHAWNTAY WILLIAMS, Appellee
On Appeal from the 300th District Court Brazoria County, Texas Trial Court Case No. 96783-F
MEMORANDUM OPINION
This is an appeal from a protective order granted by the trial court against
appellant, Brian Williams. In his first two issues, Brian challenges the legal and
factual sufficiency of the evidence supporting the granting of the protective order. In his third issue, he contends that the trial court abused its discretion in denying his
motion for new trial. We affirm.
Background
Brian and appellee, Shawntay Williams, were in a relationship for twenty-
three years. They married in 2011. They have two daughters: Bresha who is fifteen
years old and Talaya who is twelve.
At the protective order hearing, Shawntay testified that Brian had been
physically abusive to her throughout their relationship. In 1997 or 1998, Shawntay
and Brian were arguing when Brian hit her in the jaw and choked her. Shawntay
walked out of the house and called her aunt.
Sometime in the early 2000s, Brian became upset while on the phone with
Shawntay and came home. When Shawntay did not let him in, he broke a window,
entered the house, and choked her. After Shawntay called the police, Brian was
arrested and served time in county jail. Shawntay testified that Brian drinks and
often becomes intoxicated, and she believes that he was intoxicated that evening.
In 2015 or 2016, Brian became angry with Shawntay and choked her to the
point where she could not breathe. She ran to a neighbor’s house for help.
In February 2016, Brian and Shawntay moved to Pearland with Bresha and
Talaya. On one occasion, Brian and Shawntay got into a heated argument during
2 which Brian grabbed her shirt. The police were called and told them that one of
them should leave the house.
On the night of October 13, 2017, Shawntay was asleep in the master bedroom
when Brian came home intoxicated. Shawntay testified that Brian asked her if she
wanted to eat and became upset when she answered no. When Shawntay told him
to “lay down” and “sleep it off,” he asked her if she was cheating on him. Shawntay
again told him to go to sleep and that nobody was cheating on him. Brian closed the
door, accused Shawntay of cheating, and told her that if he ever found out that she
was cheating, he would kill her and whoever she was with. Shawntay testified that
Brian then took a samurai sword from the corner of their bedroom, held it to her
neck, and told her, “I could kill you right now if I wanted to.” Brian told her that he
would find her if she ever left him and that she better not take his kids. Shawntay
testified that she was scared that he was going to hurt her. Brian then removed
Shawntay’s gun from the safe in their closet and, sitting behind her, cocked the gun
and pointed it at her head. In an effort to keep him calm, Shawntay told him to go
to bed. She then told Brian “[y]ou know that I’m afraid of you. I would never do
anything like that to you.” Brian then walked around the side of the bed and began
choking Shawntay. When he stopped choking her, she jumped up and ran to the
bedroom door. Brian blocked her exit, pushed her against the door, and tried to
choke her again.
3 Bresha heard the commotion and got in between her parents to separate them.
Shawntay testified that Bresha told Brian, “[y]ou’re hurting my mom.” Brian went
to the kitchen and asked the girls if they wanted something to eat. Shawntay called
the Pearland Police Department and two officers arrived. They took statements from
Shawntay, Brian, and Bresha, and Brian was arrested. Afterwards, Shawntay
obtained a thirty-one day emergency protective order. Shawntay moved out of their
Pearland home on October 28, 2017.
During that time, Shawntay worked as a school bus driver with Pearland
Independent School District. She testified that, on one occasion, while Shawntay
was sitting in her car in the employee parking lot, Brian approached her and told her
to get out of the car so he could speak to her. When she refused, he beat on the
window several times and told her, “[o]kay. Watch. You will see. I’m going to kill
you, Bitch.” Shawntay called the police and Brian was arrested for violating the
emergency protective order. She also testified that Brian would stand on her bus
route and stare at her as she drove by. Brian also came to her place of work or her
new residence several more times to try to intimidate her. Brian also sent a text
message to Shawntay to let her know that he knew her apartment number, what side
of the building her apartment was located, and what was on her balcony. On another
occasion, Brian pulled up next to her while she was at a red light, made eye contact
with her, and gestured as if holding a gun. Shawntay also testified that Brian texted
4 her, calling her a bitch and telling her that he would kill her, and said things such as
“If I go down, we all go down.”
Shawntay left her job with Pearland ISD after she was diagnosed with severe
depression and had a nervous breakdown at work. She was unemployed at the time
of trial. Shawntay testified that she feared Brian would continue threatening her
without a protective order in place. She also testified that she wanted to divorce
Brian but was currently unable due to financial hardship.
On cross-examination, Shawntay testified that, in 1997, she pulled a gun on
Brian because he was cheating on her and brought the other woman to their home.
Bresha testified that, on the evening of October 13, 2017, she heard a
commotion coming from her parents’ room and her mom yelling, “get your hands
off of me.” She left her bedroom and went to her parents’ room where she saw her
father’s hands on her mother’s shirt. Bresha testified that her mother was in distress
and crying. Bresha jumped between them, pushed her father off of her mother, and
told her father that he was hurting her mother. Her mother went into the living room
and called the police while her father continued to walk through the house. Bresha
testified that her father has sent her mother threatening texts on many occasions,
stating that he would kill or hurt her. She also testified that her father becomes
aggressive when he is intoxicated. When her father saw a text message from one of
5 her male classmates, he told her that she was “too young to know what love is” and
then whipped and choked her.
Alan Roca, a Pearland Department police officer, was dispatched to Brian and
Shawntay’s home just after midnight on October 13, 2017. When Officer Roca
arrived, Brian was outside talking to an officer and Shawntay and Bresha were inside
the house. Shawntay told Officer Roca that she saw Brian get a gun but did not state
that he pointed it at her or mention a sword. Officer Roca testified that, based on
Shawntay’s and Bresha’s statements to police, as well as the fact that Shawntay’s
shirt was torn, Brian was charged with misdemeanor assault-family violence.
Brian testified that, in 1997, he hit Shawntay in the jaw in self-defense because
Shawntay tried to shoot him because she believed that he was having an affair. He
testified that, in 2004, he broke a window of the apartment he shared with Shawntay
and was arrested and charged with burglary of a habitation1 and served three months
in county jail. He denied grabbing and choking Shawntay during that incident.
According to Brian, Shanwtay’s account of a later incident when he choked her and
she ran to a neighbor’s house did not happen. Brian also denied putting a sword to
Shawntay’s neck or pointing a gun at her head on October 13, 2017, following
Shawntay while she was working, or sending her threatening text messages.
1 According to Brian, he was arrested and charged with burglary of a habitation because his name was not on the apartment lease. 6 On June 14, 2018, the trial court signed a final protective order. This appeal
followed.
Sufficiency of the Evidence
In his first and second issues, Brian contends that the evidence is legally and
factually insufficient to support the trial court’s findings that family violence had
occurred and was likely to occur in the future.
A. Standards of Review
When the trial court acts as a factfinder, we review its findings under the legal
and factual sufficiency standards. In re Doe, 19 S.W.3d 249, 253 (Tex. 2000); Boyd
v. Palmore, 425 S.W.3d 425, 429 (Tex. App.—Houston [1st Dist.] 2011, no pet.).
When a party who does not have the burden of proof at trial challenges the legal
sufficiency of the evidence, we consider all of the evidence in the light most
favorable to the prevailing party, indulging every reasonable inference in that party’s
favor and disregarding contrary evidence unless a reasonable factfinder could not.
City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); City of Hous. v.
Hildebrandt, 265 S.W.3d 22, 27 (Tex. App.—Houston [1st Dist.] 2008, pet. denied)
(citing Assoc. Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 285–86 (Tex.
1998)). If more than a mere scintilla of evidence exists, it is legally sufficient and
we will overrule that issue. Lozano v. Lozano, 52 S.W.3d 141, 145 (Tex. 2001);
Hildebrandt, 265 S.W.3d at 27. There is more than a scintilla of evidence if the
7 evidence rises to a level that would enable reasonable and fair-minded people to
reach differing conclusions. Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778,
782–83 (Tex. 2001).
In reviewing factual sufficiency, we examine the entire record in order to
consider and weigh all the evidence, both in support of, and contrary to, the
challenged finding. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); Boyd, 425
S.W.3d at 429. After considering and weighing all the evidence, we set aside the
verdict only if the evidence is so weak, or the finding is so against the great weight
and preponderance of the evidence, that it is clearly wrong and unjust. Cain v. Bain,
709 S.W.2d 175, 176 (Tex. 1986). We cannot substitute our opinion for that of the
trier of fact merely because we might reach a different conclusion. Boyd, 425
S.W.3d at 429. The trier of fact remains the sole judge of the credibility of the
witnesses and the weight to be given their testimony. Id. at 431.
B. Applicable Law
The Texas Family Code provides that a court shall enter a protective order if
it finds that family violence (1) has occurred and (2) is likely to occur in the future.
TEX. FAM. CODE §§ 81.001, 85.001. “Family violence” is defined, in pertinent part,
as:
[A]n act by a member of a family ... against another member of the family ... 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 8 sexual assault, but does not include defensive measures to protect oneself.
Id. § 71.004(1). “Family” is defined to include individuals who are spouses. Id.
§ 71.003. “The purpose of the protective order statute is not to remedy past wrongs
or punish prior criminal acts; rather, it seeks to protect the applicant and prevent
future violence.” Roper v. Jolliffe, 493 S.W.3d 624, 634–35 (Tex. App.—Dallas
2015, pet. denied). It is undisputed that Brian and Shawntay were spouses at the
time of the hearing.
In addition to acts intending physical harm, threats that reasonably place the
victim in fear of imminent harm constitute family violence. See, e.g., Boyd, 425
S.W.3d at 430–31 (concluding that appellant committed act of family violence when
he blocked appellee’s car with his body and jumped on hood of car); Clements v.
Haskovec, 251 S.W.3d 79, 85–86 (Tex. App.—Corpus Christi 2008, no pet.)
(concluding that appellant committed act of family violence by raising his fist and
making other threats though he never actually struck family member). In cases
involving protective orders against family violence, evidence that a person has
engaged in abusive conduct in the past permits an inference that the person will
continue this behavior in the future. See Teel v. Shifflett, 309 S.W.3d 597, 604 (Tex.
App.—Houston [14th Dist.] 2010, pet. denied) (“The trial court reasonably could
have concluded that future violence is likely to occur based on the testimony
showing a pattern of violent behavior.”); In re Epperson, 213 S.W.3d 541, 543–44 9 (Tex. App.—Texarkana 2007, no pet.) (concluding past and continuing pattern of
behavior showed applicant was reasonable in fearing respondent would commit acts
of “family violence” in future).
C. Analysis
The evidence, viewed in the light most favorable to the trial court’s finding,
shows that, on October 13, 2017, Brian arrived home intoxicated while Shawntay
was asleep. Brian went into the bedroom and repeatedly accused Shawntay of
cheating on him, telling her that if he found out that she was cheating on him, he
would kill her and whoever she was with. Brian held a samurai sword to Shawntay’s
neck and told her that he could kill her if he wanted to and then pointed a cocked
gun at her head. Afterwards, Brian began choking Shawntay to the point where she
could no longer breathe. When she tried to run out of the room, he blocked her exit,
pushed her against the door, and tried to choke her again. Shawntay testified that
she was scared that he was going to hurt her. Bresha heard the commotion and her
mom yell “get your hands off of me.” When she got to her parents’ room, Bresha
found her mother in distress and crying and saw her father’s hands on her mother’s
shirt. Bresha jumped between them, pushed her father off of her mother, and told
her father that he was hurting her mother. The October 13, 2017 incident, the
summoning of the police, Shawntay’s testimony about her fearfulness as well as
Bresha’s testimony about her mother’s distress, provide legally sufficient evidence
10 supporting the trial court’s finding that Brian committed “an act . . . that [was] a
threat that reasonably placed [Shawntay] in fear of imminent physical harm, bodily
injury, [or] assault,” and thus satisfied the definition of “family violence.” See TEX.
FAM. CODE § 71.004(1).
In support his contention that the evidence is legally and factually insufficient
to show that he committed an act that reasonably placed Shawntay in fear of
imminent harm, bodily injury or assault, Brian points to inconsistencies in the
witnesses’ testimony. He also asserts that it is inconceivable that he could have put
a sword to Shawntay’s neck and pointed a gun at her head yet she did not tell the
police or include this information in her written statement.
As the factfinder, the trial court was the sole judge of the credibility of the
witnesses and the weight to be given their testimony. See Boyd, 425 S. W.3d at 431;
see also Pena v. Garza, 61 S.W.3d 529, 532 (Tex. App.—San Antonio 2001, no pet.)
(noting trial court is free to reject or accept all or part of witness’s testimony). Here,
the trial judge heard the witnesses testify during the hearing and was free to believe
Shawntay’s testimony regarding the abuse and disbelieve Brian’s efforts to discredit
that testimony, even without evidence corroborating every detail of Shawntay’s
account. See Boyd, 425 S.W.3d at 431 (holding trial court was free to place greater
weight on applicant’s testimony when making family violence finding). Moreover,
the fact that Shawntay did not tell police that Brian held a sword to her neck and
11 pointed a gun to her head during the October 13, 2017 incident does not negate her
testimony that those events occurred. See Amir–Sharif v. Hawkins, 246 S.W.3d 267,
272 (Tex. App.—Dallas 2007, pet. dism’d w.o.j.) (rejecting contention that
protective order was erroneous because no documentary evidence was introduced
corroborating applicant’s testimony); see also Martin v. Martin, 545 S.W.3d 162,
167 (Tex. App.—El Paso 2017, no pet.) (concluding fact that ex-wife mentioned
additional incident in response to specific question does not negate her testimony
about two other events made basis of motion for protective order).
Courts have also observed that “[o]ftentimes, past is prologue; therefore, past
violent conduct can be competent evidence which is legally and factually sufficient
to sustain the award of a protective order.” In re Epperson, 213 S.W.3d at 544 (citing
In re T.L.S., 170 S.W.3d 164 (Tex. App.—Waco 2005, no pet.)). In addition to the
October 13, 2017 incident, Shawntay testified to three prior incidents when Brian
choked her during the course of their relationship. She also testified that on
numerous occasions Brian verbally threatened her, telling her that he would kill or
hurt her. After the October 2017 incident, Brian approached her several times and
threatened her, including beating on her car window on one occasion when she
refused to speak with him, and also texted her that he knew where she lived. Bresha
also testified that her father has sent her mother threatening texts on many occasions,
stating that he would kill or hurt her. See Kuzbary v. Kuzbary, No. 01-14-00457-
12 CV, 2015 WL 1735493, at *5 (Tex. App.—Houston [1st Dist.] April 14, 2015, no
pet.) (mem. op.) (evidence supporting protective order included instances of physical
aggression occurring several years before application for protective order); Dempsey
v. Dempsey, 227 S.W.3d 771, 778 (Tex. App.—El Paso 2005, no pet.) (evidence
supporting protective order included actions by ex-husband five years before
application for protective order).
The record before the trial court chronicled two decades of physical abuse. In
light of that history of abuse, Brian’s conduct on October 13, 2017, and his repeated
threats and intimidation of Shawntay following that incident, the trial court
reasonably could have concluded that Brian’s conduct constituted a threat that
reasonably placed Shawntay in fear of imminent physical harm, bodily injury, or
assault. This constitutes more than a scintilla of evidence that “family violence” had
occurred in the past. See TEX. FAM. CODE § 71.004(1); Boyd, 425 S.W.3d at 430
(holding evidence that respondent had engaged in threatening behavior, including
following applicant to her mother’s office, blocking her car, and jumping on her
car’s hood, was legally sufficient to support trial court’s finding of “family
violence”). Similarly, we conclude that there is evidence supporting the trial court’s
finding that Brian would likely commit family violence in the future. See Teel, 309
S.W.3d at 604 (“The trial court reasonably could have concluded that future violence
is likely to occur based on the testimony showing a pattern of violent behavior.”); In
13 re Epperson, 213 S.W.3d at 543–44 (concluding past and continuing pattern of
behavior showed applicant was reasonable in fearing respondent would commit acts
Nor is the evidence factually insufficient to support entry of the protective
order, particularly in view of the evidence establishing a pattern of similar conduct
in the past. Because the trier of fact is the sole judge of the credibility of the
witnesses and the weight to be given their testimony, see Boyd, 425 S.W.3d at 431,
the trial court was free to place greater weight on Shawntay’s testimony and to
conclude that Brian’s actions during the October 2017 incident placed Shawntay in
reasonable and imminent fear for her safety. Shawntay’s testimony that Brian
choked her and threatened her with weapons, and Bresha’s testimony that her mother
was crying and in distress when she came to her parents’ room, that her father was
holding her mother’s shirt, and that she feared that her father was going to hurt her
mother, was not so weak as to be clearly wrong or manifestly unjust and is therefore
factually sufficient. See id. We overrule Brian’s first and second issues.
Motion for New Trial
In his third issue, Brian contends that the trial court abused its discretion in
denying his motion for new trial.
A court has broad discretion to grant a motion for new trial and may do so
“for good cause.” TEX. R. CIV. P. 320; In re Columbia Med. Ctr. of Las Colinas,
14 Subsidiary, L.P., 290 S.W.3d 204, 210 (Tex. 2009). The denial of a motion for new
trial is reviewed for abuse of discretion. Waffle House, Inc. v. Williams, 313 S.W.3d
796, 813 (Tex. 2010); Sozanski v. Plesh, 394 S.W.3d 601, 604 (Tex. App.—Houston
[1st Dist.] 2012, no pet.). A trial court abuses its discretion if it acts without
reference to any guiding rules or principles or fails to correctly analyze or apply the
law. Celestine v. Dep’t of Family & Protective Servs., 321 S.W.3d 222, 235 (Tex.
App.—Houston [1st Dist.] 2010, no pet.); Sozanski, 394 S.W.3d at 604.
In his motion for new trial, Brian challenged the legal and factual sufficiency
of the evidence supporting the trial court’s finding that family violence occurred and
that it was likely to occur in the future. In particular, he argued that Shawntay’s
testimony that he violated the thirty-one day emergency protective order when he
appeared at her workplace was contradicted by an email dated November 4, 2017,
that she allegedly sent to him so that he could provide it to the trial court. The email
states that Brian came to her workplace to tell her that their older daughter was sick
and he needed the insurance card in Shawntay’s wallet. She further stated that “it
was all a big misunderstanding” and that she did not believe that he came to
intentionally harm her. Even if Shawntay sent this email to clarify the events of
15 November 4, 2017, she testified that Brian came to her place of work and her new
residence on more than occasion to threaten and intimidate her.2
The evidence in the record before us is legally and factually sufficient to
support the trial court’s finding of family violence. We conclude that the trial court
did not abuse its discretion in denying Brian’s motion for new trial. We overrule his
third issue.
Conclusion
We affirm the trial court’s protective order.
Russell Lloyd Justice
Panel consists of Justices Lloyd, Kelly, and Hightower.
2 The November 6, 2017 email, which was attached as an exhibit to his motion for new trial, was not offered as evidence at the June 14, 2018 hearing on Shawntay’s motion for protective order. 16