NUMBER 13-08-00593-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
HERACLIO ERIC FLORES, Appellant,
v.
SHEILA REEVES FLORES, Appellee.
On appeal from the 430th District Court of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Yañez and Garza Memorandum Opinion by Justice Yañez
This is an appeal from a protective order issued by the trial court against appellant,
Heraclio Eric Flores. By four issues, appellant complains of the legal and factual
sufficiency of the evidence to support the trial court's findings of past and future family violence.1 We affirm.
I. BACKGROUND
Appellee, Sheila Reeves Flores, and appellant were divorced in November 2007.
Sheila filed an application for a protective order on July 31, 2008. A bench trial was held
on September 24, 2008. Sheila testified on her own behalf and called, among others, the
following witnesses: appellant, Richard Samudia, and Laura Leal. Appellant presented
the testimony of, among others, his brother, Jose Flores.
At that trial, Sheila testified that appellant's behavior after the divorce had been "in
some areas" "nice and kind" but that appellant had begun "tracking" her, accusing her of
being a whore, threatening to take the children away from her, and attempting to "control
where [she was] at and when [she was] going to be there . . . ." Sheila stated that she had
asked appellant not to "come by" her residence; however, appellant told her that he would
do whatever he wanted to do.
Sheila claimed that appellant had repeatedly "threatened that [she] will not go out
with anyone else" and has stated that "he doesn't even care if he's arrested [because] [n]o
matter what, he's not going to let that happen." According to Sheila, appellant has called
"each person" that she has "tried to go out with" and "talked poorly or both talked poorly
about [her] and threatened them." Sheila stated that appellant has been "telling people
that [she is] using drugs" and "accusing [her] of having drug dealers out in front of her
house . . . ."
Sheila testified that on one occasion when she was dropping her children off at
school, appellant "blocked" her vehicle with his vehicle. According to Sheila, appellant
1 See T EX . F AM . C OD E A N N . §§ 81.001, 85.001 (Vernon 2006).
2 "came up in a rush in his car behind" her asking her to answer her phone and to speak with
her ex-boyfriend's wife, Laurie Regusa. Sheila told appellant, "Look, not at the kid's
school," and then drove away. Sheila stated that, as she drove off, appellant drove around
her, stopped his car in front of her car, exited his vehicle, and shouted that Sheila "better
talk to" Laurie.2 Sheila told appellant that she was going to call the police.3 Sheila stated
that appellant was "irate" and that she feared for her safety and felt threatened. Sheila
explained that appellant was at her car door and the traffic was passing by her vehicle; she
thought that he was "going to pull [her] out." Sheila stated that appellant "was just so, you
know, angry, I did not know what to think. I just needed him to leave me alone."
Sheila testified that when she was at a friend's birthday party, appellant approached
her and said, "I'm going to be watching everything you do while you're at this
party. . . . You better not be talking to anybody else because I'm going to have my eye on
you." Sheila stated that she purposely moved from location to location at the huge
warehouse where the party was held, but she noticed that appellant "changed his
positioning so that he was, like, staring at [her]." Later, Sheila and a male friend went to
retrieve several items from her car, and appellant followed them outside and told Sheila's
friend to go inside. According to Sheila, appellant then "blocked" her way and would not
allow her to go back to the party. Sheila stated that appellant told her that they needed to
2 On cross-exam ination, Sheila stated:
I'd already been presented with him [appellant] zoom ing— oops, sorry— zoom ing up behind m e in the gravel parking lot of m y kids' school with all the other parents there, trying to blow this thing out in the m iddle of the parking lot. And then I was presented with him not letting m e go but continuing ahead of m e, blocking m e off, getting out of the car in traffic and throwing a phone at m y window and trying to get in m y door. Yes, I felt threatened.
Sheila clarified that appellant had not "physically" thrown the phone at her.
3 On cross-exam ination, Sheila stated that she had called the police regarding this incident.
3 "talk about this" and that Sheila "was not going to be seeing other people." Appellant
allegedly said, "We need to get together, and we need to figure out what's going on here
because I'm not going to allow you to be going out with people." Sheila told appellant that
he needed to let her go, or she would call the hostess of the party to "come and help" her.
After Sheila repeated this to appellant several times and fifteen minutes had passed,
appellant "let" Sheila go back to the party. Sheila testified that she noticed that appellant
left the party when she left.
When asked if appellant had ever called and threatened her, Sheila replied, "Well,
he's done that numerous times." Sheila claimed that she recorded those threatening calls
from appellant, and the trial court allowed the recordings to be played.4 When asked, "The
voice that we heard on that recording, is that the demeanor and how [appellant]
approaches you?", Sheila responded, "Repeatedly, yes." The following exchange then
occurred:
[Sheila's counsel]: And you felt that you had to file this protective order because he was threatening you?
[Sheila]: Correct.
[Sheila's counsel]: Did you fear for your safety? Did you feel that he could harm you?
[Sheila]: Definitely.
[Sheila's counsel]: Why do you say that?
[Sheila]: Just by how his behavior has escalated over time and because he's said statements to me that he doesn't know how he would respond if he saw me out with
4 The record reveals that two recordings were played in open court. The court reporter docum ented that the recordings were not clear enough for transcription. The court reporter requested copies of those tape recordings. However, the court reporter noted in the record that those recordings have not been provided. Those recordings are not included in the appellate record.
4 someone, and he didn't think he would have control over himself, and from him blocking me on the two occasions that we discussed, plus one other occasion.
Sheila testified that she has asked appellant to change his behavior and leave her
alone. Sheila documented that she has told appellant to leave her alone at least twice
each month since December 2007. After Sheila filed her application for a protective order
and appellant had agreed to mediation, she discovered a "tracking device" had been
attached to her vehicle.
When asked whether she wanted appellant to be prohibited from carrying a firearm,
Sheila said, "Well, I really don't feel like he would shoot me, and if he did, I guess he would
go to prison for that, so I don't know. I know it means a lot to him, so I don't know what to
say on that, you know."5 However, Sheila agreed that she was fearful that appellant could
harm her and was fearful for her safety and welfare.
On cross-examination, Sheila testified that appellant had been constantly calling
Laurie, her ex-boyfriend's wife. Sheila stated that she had talked to Laurie, and Laurie
warned her that appellant was "tracking" her phone records. According to Sheila, on
another occasion, Laurie said, "I'm sorry. You know, your husband, ex-husband
[appellant], keeps calling me and, you know, you need to be careful."
After the divorce, Sheila continued working for appellant's company, APEX Primary
Care ("APEX") in Edinburg, Texas.6 When asked how many times after filing the
5 W e note that in its order, the trial court specifically stated that appellant's license to carry a handgun was not suspended. However, in his brief, appellant states that the trial court was without authority to allow appellant to retain his license pursuant to section 411.72(a)(12) of the governm ent code. See T EX . G O V 'T C OD E A N N . § 411.72(a)(12) (Vernon Supp. 2009). According to appellant, he was required to surrender his concealed handgun license, despite the trial court's order.
6 W e note that Sheila owns her own business, Buena Suerte Hom e Health Care, that is located in McAllen, Texas.
5 application for a protective order she had gone to her office, Sheila replied, "I would say
not more than a total of two hours a week. . . . I would say two times a week, but I don't
know how many weeks that's been. I generally try to get by there twice a week, in and
out." Sheila explained that she tried to time her visits to the office when she noticed that
appellant's car was not there.
When asked if appellant had ever hit her, Sheila stated that during the last year of
their marriage, appellant had violently "thrown [her] out of the house." Sheila said, "He
picked me up and threw me out, and I caught myself on my elbow, and it's dark. . . . And
thereafter, he did not hit me again." Sheila explained that if appellant became mad at her,
and she got near him, appellant would tell her, "Don't you dare come near me. Don't you
dare come near me." Sheila interpreted appellant's remarks to mean that if she did go
near appellant, "it could happen again."
Sheila stated that although she is not afraid when she goes to the office, she is
afraid when she is out socially. She said:
So when I walk out my door and I walk to my mailbox, I look to see if somebody is watching. And I never would have someone over at my house because I know that he would be in that door or he would get them on the way out the door. And I know all of that because he's told me that repeatedly, and he's told everyone around me that repeatedly. And he's told people who were my friends that.
Sheila acknowledged that appellant had not broken down her door, but explained that she
does not have guests because she is afraid. Sheila testified that on one occasion when
her ex-boyfriend came to her residence, appellant "chased [the ex-boyfriend] down when
he left the house."
Sheila stated:
But I do know, on May 5th, that he [appellant] said he would always be a
6 threat if I went out with anyone. He said he would not care if he was arrested but he could be—not be trusted on how he would respond if he saw me with someone or someone saw—or saw me with someone in my house. He said that to me on the phone on May the 5th.
When asked if she was in fear for her life, Sheila said, "I believe when he says he cannot
be trusted and does not know what he can do that he is genuine in that emotion. And I
believe his emotions are often out of control." Sheila stated that she felt threatened
because appellant told her he could not be trusted. Sheila explained that she also felt
threatened because she told appellant that his brother-in-law had mowed her lawn, then
appellant "went and assaulted his brother-in-law and fired his sister in front of their
children . . . ." Sheila testified that appellant threatens anyone associated with her and that
puts her in danger because she cannot be around anyone who is being threatened by
appellant.
Samudia, a private investigator, testified that he conducted an investigation
concerning a GPS device that was "strapped" to the back axle of Sheila's vehicle.
According to Samudia, he went to T-Mobile, the company where the GPS device had been
purchased, and discovered that the GPS device was listed on appellant's T-Mobile
account. Subsequently, the device was removed from Sheila's vehicle and Samudia took
the device with him. Samudia stated that when the device was turned on, he noticed that
a black Jeep Cherokee, registered to Savannah Gonzalez, was following him. Samudia
discovered that Gonzalez is appellant's niece. Samudia took the device with him for a day
and traveled to Elsa, Texas. Samudia said:
And the device has that on-and-off switch, so I would turn it on and off. When I wanted them to follow me, I would turn it on, and they would follow me. Then, when I would park to see who was following me, I would turn it off. And I noticed the Jeep coming around so I turned it off and I left the area.
7 I went to Monte Alto, and I turned it back on when I was on the highway and let them know that I was in Monte Alto. And when I headed back to Elsa, the Jeep was going to Monte Alto.
Samudia then went to Weslaco, Texas, and turned the device on so that the party following
him would know where he was located. Once in a parking lot, Samudia turned the device
off. Samudia stated that he saw appellant driving the Jeep that was following him. On re-
direct examination, Samudia testified that he was certain that it was appellant who was
following the GPS signal, and on cross-examination, Samudia said that there was "no
doubt" that it was appellant.
Leal testified that she has worked for Sheila for about four months. According to
Leal, she had never met appellant. Leal was delivering some paperwork to Sheila at her
residence one morning, and she saw a Cadillac XLR parked in front of Sheila's residence.
When Leal went back to her car, she noticed that the Cadillac XLR "was driving by real
slow right next to her car." Leal stated that the car looked suspicious and it was driving
slowly and then sped up once it passed by her car. Leal called a co-worker and asked if
she knew who drove a Cadillac XLR, and the co-worker stated that appellant did. Leal
identified appellant as the person she saw driving the Cadillac XLR that day.
Leal followed the car. When she lost track of where the Cadillac XLR had gone,
Leal drove back to Sheila's street to make sure that there was nothing else suspicious.
Leal then saw the Cadillac XLR parked on Sheila's street again.
Appellant denied knowing anything about the GPS device attached to Sheila's
vehicle. Appellant stated that tracking devices are installed in all company vehicles.
Appellant testified that he had no idea why the tracking device was installed on Sheila's
personal vehicle and said that was a question for his maintenance department. Appellant
8 said that his maintenance department puts the tracking devices on all of his company's
vehicles; however, appellant acknowledged that Sheila's vehicle did not belong to the
company.
Appellant stated that on one occasion, he did park his car on Sheila's street
momentarily in order to use his phone. Appellant claimed that he was passing by Sheila's
residence to "see if anybody was out there" and "make sure she was okay." Appellant said
that he did not recall leaving Sheila's residence and then returning. However, appellant
testified that he had only passed by Sheila's residence about three or four times since the
divorce. Appellant stated that he did not have a "legitimate" reason to be passing by
Sheila's house.
Appellant admitted that he had contacted three men who Sheila dated after the
divorce, including Michael Regusa. Appellant stated that he followed Michael and "tried
to get him to pull over." Appellant claimed he wanted to talk to Michael but that he did not
stop. However, appellant later stated that he knocked on Michael's window. Appellant
claimed that he contacted Michael and the other men Sheila dated because he was
concerned about his children.
When asked if he recalled blocking Sheila's vehicle, appellant stated that he had
"never blocked" Sheila. According to appellant, he was merely trying to get Sheila to
answer her phone and talk to Laurie. Appellant stated that Sheila would not pull over so
he "drove past her, got in front of her and slowed down [his] car and stopped and got out
of [his] car. And she was driving up, and she rolled down the window; and [she] said,
'What do you want.'" Appellant testified that Sheila was not blocked in because she could
have driven around his vehicle. Appellant stated that he did not prevent Sheila from re-
9 entering the party but, instead, had noticed that she had been at her car for a long period
of time and went outside and asked her to come back inside the party. Appellant denied
that he was harassing or threatening Sheila.
The trial court issued a final protective order and found that appellant had committed
family violence and that family violence is likely to occur in the future.7 The protective order
prohibited appellant from: (1) "committing family violence[,] ie: causing fear of bodily harm
or bodily injury to [Sheila], as defined in section 71.004 of the Texas Family Code"8; (2)
communicating directly in a threatening or harassing manner with Sheila; (3)
communicating a threat through any person to Sheila; (4) "engaging in conduct directed
specifically toward [Sheila] that is reasonably likely to harass, annoy, alarm, abuse,
torment, or embarrass [Sheila]"; (5) going to or near Sheila's residence for any other
purpose than transferring the children pursuant to the parties' divorce decree or written
agreement; and (6) going to or near Buena Suerte Home Health Care in McAllen, Texas.9
The trial court also ordered appellant "[n]ot to harass, threaten or disturb the peace of
[Sheila]."
II. LEGAL AND FACTUAL SUFFICIENCY
By four issues briefed as one, appellant contends that the evidence is legally and
factually insufficient to support the trial court's findings that he committed family violence
7 See T EX . F AM . C OD E A N N . §§ 81.001, 85.001.
8 See id. § 71.004 (Vernon 2008).
9 The trial court noted that appellant could com m unicate with Sheila at APEX pertaining to business m atters, subject to the other provisions of the order. W e note that pursuant to an agreem ent with appellant, Sheila was awarded a salary of $70,000 per year plus $17,000 to work at APEX. Sheila also agreed to continue working at APEX.
10 and that family violence would occur again in the future.10 Specifically, in his first and third
issues, appellant argues that the evidence is factually insufficient to support the trial court's
findings that family violence occurred and would likely occur in the future; by his second
and fourth issues, appellant argues that the evidence is legally insufficient to support those
findings.
A. Standard of Review
"A legal sufficiency challenge may only be sustained when (1) the record discloses
a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or of
evidence 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."11 In a legal sufficiency review, we
must view the evidence in the light most favorable to the verdict, crediting favorable
evidence if a reasonable fact-finder could and disregarding contrary evidence unless a
reasonable fact-finder could not.12 The final test for legal sufficiency must always be
whether the evidence at trial would enable reasonable and fair-minded people to reach the
verdict under review.13
In a factual sufficiency review, we must consider and weigh all of the evidence in a
neutral light.14 The evidence is factually insufficient only if we conclude "that the verdict is
10 See id. §§ 81.001, 85.001.
11 Schaban-Maurer v. Maurer-Schaban, 238 S.W .3d 815, 823 (Tex. App.–Fort W orth 2007, no pet.) (citing Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W .2d 328, 334 (Tex. 1998); Robert W . Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 T EX . L. R EV . 361, 362-63 (1960)).
12 City of Keller v. W ilson, 168 S.W .3d 802, 807 (Tex. 2005).
13 Id. at 822.
14 Golden Eagle Archery, Inc. v. Jackson, 116 S.W .3d 757, 761 (Tex. 2003).
11 so against the great weight and preponderance of the evidence as to be manifestly unjust,
regardless of whether the record contains some evidence of probative force in support of
the verdict."15 To set aside the verdict, we must "detail the evidence relevant to the issue"
and then state why the evidence is "factually insufficient or is so against the great weight
and preponderance as to be manifestly unjust; why it shocks the conscience; or clearly
demonstrates bias."16
B. Analysis
Appellant argues that the actions Sheila claims he committed did not "arise [sic] to
the level of 'family violence' as defined by the applicable code, or as interpreted by any
court in this state, and particularly by this [C]ourt." Appellant also asserts that his alleged
actions of "impeding movement on the roadway or at the party, the GPS tracking device,
calling [Sheila's] lovers/boyfriends and passing by [Sheila's] home" neither resulted "in
physical harm, bodily injury, assault, or sexual assault upon [Sheila]" nor placed Sheila in
fear of imminent physical harm, bodily injury, assault, or sexual assault.
A trial court shall render a protective order if, after a hearing, it finds that family
violence has occurred and is likely to occur in the future.17 Family violence includes "an
act by a member of a family or household against another member of the family or
household . . . 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
15 Id.
16 Id. (internal quotations om itted).
17 T EX . F AM . C OD E A N N . §§ 81.001, 85.001.
12 measures to protect oneself."18 Our focus, therefore, is on the evidence regarding any act
by appellant that was a threat reasonably placing Sheila "in fear of imminent physical harm,
bodily injury, assault" and the likelihood that such threats, if made, would reoccur in the
future.19
In this case, Sheila stated that after the marriage ended, appellant threatened her
on numerous occasions, and tape recordings of those alleged threats were played for the
trial court. Sheila testified that she felt threatened and feared for her safety. According to
Sheila, appellant stated that: (1) she could not go out with anyone else; (2) he was not
sure how he would respond if he saw her out with someone else; (3) he did not think he
could control himself if he saw her with someone else; and (4) he did not care if he was
arrested. Sheila stated that appellant told her that "he would always be a threat if [she]
went out with anyone" and that he could not be "trusted" if he saw her with someone or
someone was at her house.
Sheila testified that she was afraid to allow guests to come to her residence
because appellant "repeatedly" told her that "he would be in that door or he would get them
on the way out the door." Sheila acknowledged that appellant had not broken down her
door, but explained that appellant had "chased" her ex-boyfriend when he left her
residence.
Sheila testified that appellant "blocked" her vehicle from leaving her children's
school. Sheila described appellant as irate and stated that she feared for her safety and
felt threatened. She thought that appellant was going to pull her out of the vehicle. Sheila
18 Id. § 71.004(1).
19 See id. §§ 81.001, 85.001.
13 called the police to report the incident. Appellant argues that Sheila's fear that he would
pull her out of the vehicle was unreasonable because he had "never before laid a hand on
her or harmed her in any form or fashion in the past." However, Sheila said that appellant
had violently thrown her out of the house when they were still married. After that incident,
Sheila interpreted appellant's request that she move away from him when he was angry
to mean that he might do it again if she went near him. Appellant also prevented Sheila
from re-entering a party and warned her that she better not be talking to anyone else
because he was observing her activities.
There was evidence presented that appellant utilized a tracking device to monitor
Sheila's vehicle. Samudia testified that when he removed the tracking device and carried
it to various locations, he observed appellant driving a car registered to appellant's niece
following the signal. There was also evidence presented that appellant had threatened
people associated with Sheila, and Sheila testified that appellant assaulted his brother-in-
law after she informed appellant that the brother-in-law had mowed her lawn. In an
affidavit, admitted as petitioner's exhibit 2, Martin Pena II, Sheila's friend, stated that Jon
Scepanski, appellant's friend, had contacted him and informed him that appellant had hired
a private investigator to "watch" Sheila.
Sheila testified that she had asked appellant not to "come by" her residence but that
appellant told her he would do what he wanted to do. Leal testified that she observed
appellant parked in his vehicle on Sheila's street. Leal became so concerned about
appellant's vehicle, she called another coworker and followed appellant. Appellant testified
that he did not have a "legitimate" reason to pass by Sheila's residence, but admitted he
had been parked on her street. On both occasions when appellant prevented Sheila from
14 leaving, Sheila asked appellant to leave her alone and appellant refused. Sheila testified
that she has asked appellant to leave her alone numerous times and that after appellant
agreed to a mediation, she discovered the tracking device attached to her car.
Viewing the evidence in the light most favorable to the verdict, crediting favorable
evidence if a reasonable fact-finder could and disregarding contrary evidence unless a
reasonable fact-finder could not, we conclude that the evidence is legally sufficient to
support the trial court's findings that family violence occurred and is likely to occur in the
future.20 We overrule appellant's first and third issues. Moreover, after considering and
weighing all of the evidence in a neutral light, we cannot conclude that the trial court's
findings are against the great weight and preponderance of the evidence as to be
manifestly unjust.21 We overrule appellant's second and fourth issues.
IV. CONCLUSION
We affirm the trial court's judgment.
LINDA REYNA YAÑEZ JUSTICE
Delivered and filed the 30th day of August, 2010.
20 See City of Keller, 168 S.W .3d at 807; see also Clements v. Haskovec, 251 S.W .3d 79, 84 (Tex. App.--Corpus Christi 2008, no pet.) (concluding that the appellant's behavior constituted fam ily violence, even though he never actually struck his daughter and that appellant's threats to his wife and daughter and the fact that he raised his fist at his daughter were "sufficient to im plicate his conduct as fam ily violence"); Siegert v. Flannery, No. 04-03-00487-CV, 2004 Tex. App. LEXIS 6989, at **2-6 (Tex. App.–San Antonio Aug. 4, 2004, no pet.) (m em . op.) (finding that the appellant's actions of post-divorce harassing and intim idation could have been found to be threatening and to have reasonably placed the petitioner in fear of im m inent physical harm , bodily injury, or assault); Thompson v. Thompson-O'Rear, No. 06-03-00129-CV, 2004 Tex. App. LEXIS 5033, at *4 (Tex. App.–Texarkana June 8, 2004, no pet.) (m em . op.) ("At som e point, harassm ent m ay transform into an active threat.").
21 See Golden Eagle Archery, Inc., 116 S.W .3d at 761.