James Willard Ransdell v. State

• Court: Court of Appeals of Texas
• Decided: May 8, 2007
• Docket: 06-06-00166-CR
• Status: Published

Opinion

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-06-00166-CR

JAMES WILLARD RANSDELL, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 336th Judicial District Court

Fannin County, Texas

Trial Court No. 21661

Before Morriss, C.J., Carter and Moseley, JJ.

Memorandum Opinion by Justice Moseley

MEMORANDUM OPINION

James Willard Ransdell, charged with unlawful restraint of Sierra Rose Ransdell (a child less than seventeen years of age) and placing her in substantial risk of serious bodily injury, was found guilty by a Fannin County jury. ⁽¹⁾ This conviction being enhanced by a prior felony conviction to a second-degree felony, Ransdell was sentenced to twenty years' imprisonment. He appeals from that conviction.

FACTS OF THE CASE

Ransdell suffers from bi-polar disorder and is schizophrenic, maladies from which he has suffered for a number of years. He had previously been married to Bonnie Ransdell, who divorced him in May 2005. The couple had three children, Sierra, Jayden, and Zach. During their marriage, Ransdell had intermittently exhibited bizarre behavior, occasionally having paranoid delusions and having attempted suicide at least once.

After their divorce, Ransdell and Bonnie maintained an amicable relationship. Ransdell (although maintaining a dwelling elsewhere) apparently had the run of Bonnie's house--both day and night--and he and Bonnie still sometimes engaged in sex together.

Ransdell had, a few days before, driven off with Bonnie's car, which contained her purse, cellular telephone, house keys, and other items. Then, in the early morning hours of November 4, 2005, Ransdell appeared at the house, telling Bonnie that he wanted to take a shower there. Bonnie consented and was pleased to have her car and other items returned to her.

After he had showered, Ransdell became convinced that "people" who had malicious intentions toward Bonnie and the couple's children were both inside and outside of the house. Ransdell maintained that he could see the nonexistent "people" and insisted that all of the lights be turned off so these "people" could not see any of the Ransdell family. Ransdell used a light on Bonnie's cellular telephone to negotiate around through the house; he even peered through the hatch going into the attic of the house and announced that some of the "people" were in the attic as well. During this episode, he became extremely agitated; he shoved the entertainment center against the front door to block its entrance to the "people" (though it is unclear whether he was attempting to keep the "people" inside the house or outside of it), began carrying around a child's aluminum baseball bat, and yelling enough to be foaming about the mouth.

The Bonham Police Department received two 9-1-1 emergency calls. One of these was from Bonnie's next-door neighbor, who complained of having been awakened by the screaming of Ransdell, Bonnie, and the children. The other emergency call was from Ransdell, who called to seek police assistance in protecting against the unnamed "people" he was seeing as being a threat to his family.

When the first officer arrived, Sierra spotted his police flashlight and pounded on a picture window in the front of the house, crying and screaming, "help me." The officer observed Bonnie, with Zach in her arms, both mother and child weeping; Ransdell was in the same room, shouting, screaming, and "wild-eyed." Another officer arrived and the officers were told by Bonnie through the window that the front door was barricaded, the officers proceeded to the rear door of the house. Sierra came running from the house with her arms extended toward one of the officers, crying and saying, "Help me, my dad's crazy." Sierra was followed by Jayden, Bonnie, and Zach. Ransdell then exited the rear door of the house; after he first paced back and forth, shouting that there were people in the house. On the demands of the officers, he laid on the ground and allowed himself to be handcuffed and escorted to jail.

Initially, Bonnie wrote a statement for the police which said that Ransdell had blocked the front door of the house with the entertainment center and that, when they had attempted to exit through the rear door of the house, Ransdell had blocked them. Thereafter, Bonnie signed more than one document requesting that no prosecution of the claim proceed, maintaining that all that she wanted concerning Ransdell was aid in getting him treatment, not in criminal prosecution of him. At trial, Bonnie recanted the portion of her statement that he had barred their exit, maintaining that Ransdell had been blocking the use of the exits to protect his family from "the people" and did not attempt to bar any members of the family from leaving the house except in his attempt to protect them.

Under Section 20.02 of the Texas Penal Code, the base offense of unlawful restraint ⁽²⁾ is to intentionally or knowingly restrain another person. Without additional circumstances, this is a class A misdemeanor. Tex. Penal Code Ann. § 20.02 (Vernon 2003). However, if the restrained person is younger than seventeen years of age, the crime escalates to a state-jail felony and it becomes a felony of the third degree if the "actor recklessly exposes the victim to a substantial risk of serious bodily injury." Id.

FACTUAL/LEGAL INSUFFICIENCY CLAIMS

Ransdell raises three points of error, all relating to the legal and/or factual sufficiency of the evidence to support the finding of guilt. ⁽³⁾

In a factual sufficiency review, the evidence is reviewed in a neutral light rather than (as in a legal sufficiency review) in the light most favorable to the verdict. Roberts v. State, No. AP-75,051, 2007 Tex. Crim. App. LEXIS 429 (Tex. Crim. App. Apr. 18, 2007). Evidence can be factually insufficient in one of two ways: (1) when the evidence supporting the verdict is so weak that the verdict seems clearly wrong and manifestly unjust, and (2) when the supporting evidence is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006). A reversal for factual insufficiency cannot occur when "the greater weight and preponderance of the evidence actually favors conviction!" Id. at 417. Although an appellate court reviewing factual sufficiency has the ability to second-guess the jury to a limited degree, the review should still be deferential, with a high level of skepticism about the jury's verdict required before a reversal can occur. Cain v. State, 958 S.W.2d 404, 407 & 410 (Tex. Crim. App. 1997).

We apply well-known standards when reviewing challenges to the legal sufficiency of the evidence. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). Viewing the evidence in the light most favorable to the verdict, we determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005); Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004), cert. denied, 544 U.S. 950 (2005); Simmons v. State, 109 S.W.3d 469, 472 (Tex. Crim. App. 2003).

Under either a review of the factual or legal sufficiency of the evidence, the jury is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony and is free to accept or reject any or all of the evidence presented and to make reasonable inferences and deductions from the evidence. See Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003); Jones v. State, 944 S.W.2d 642, 647-48 (Tex. Crim. App. 1996); Smith v. State, 895 S.W.2d 449, 452 (Tex. App.--Dallas 1995, pet. ref'd).

EVIDENCE OF ILLEGAL RESTRAINT

Looking at the evidence, a good portion of the facts have already been set out above and there is no need to restate them. However, as to the critical issue of the restraint of Sierra, we find some contradictions from the primary witness to the incident, Bonnie. On direct examination at trial, some of the testimony from Bonnie went as follows:

Q. Did Sierra ever try to leave?

A. I don't think she ever tried to leave. None of the kids were trying -- I mean, it was early in the morning. It wasn't like it was daylight and they wanted to go outside and play. You know, they didn't try to get out the doors. The baby wouldn't have tried to get out the door, that sort of thing.

Q. Well, did James ever grab her, hold her, or put her in her room or --

A. Huh-uh.

Q. -- or use a verbal command to restrain her from going outside or leaving the house?

A. No.

Bonnie also testified that Ransdell had used the entertainment center to barricade the front door. She related that Ransdell's ranting about the "people" frightened the children, who began to cry. From the rendition which was given by her at trial, the fears of the children--when coupled with the irrational thought patterns of Ransdell--made the entire episode spiral upward into a truly out-of-control situation.

This was the general tenor of the testimony from Bonnie regarding Ransdell's conduct regarding the restraint of Sierra during the incident.

However, this testimony contrasted with the written statement given by Bonnie on the morning of November 4, 2005. In it, she related that:

I felt that Jay was not letting us leave the house. He was saying that he was keeping "people in." If we went to the Back door he would go & jump on the Bar Preventing us from going out the Rear door. He moved the entertainment center in front of the Front door. We had no way out.

While these two statements are not entirely inconsistent, ⁽⁴⁾ the statement given by Bonnie to the police in the early morning after the incident does not attribute the benignity to Ransdell's conduct which her testimony gives at trial. The general tenor which the jury could glean from the two was that Sierra (and the others in Ransdell's family) were being restrained by Ransdell in the house against their will. The fact that Sierra, a ten-year-old at the time, made no actual attempt to power past her raving father in an attempt to leave the house did not diminish the fact that he was preventing her from leaving. Section 20.01 of the Texas Penal Code provides that:

"Restrain" means to restrict a person's movements without consent, so as to interfere substantially with the person's liberty, by moving the person from one place to another or by confining the person. Restraint is "without consent" if it is accomplished by:

(A) force, intimidation, or deception; or

(B) any means, including acquiescence of the victim, if:

(i) the victim is a child who is less than 14 years of age or an incompetent person and the parent, guardian, or person or institution acting in loco parentis has not acquiesced in the movement or confinement.

Tex. Penal Code Ann. § 20.01.

There is nothing which would require the victim of an illegal restraint to attempt to escape; the threat of force (whether real or reasonably perceived) would be sufficient to restrain her. There was sufficient evidence, both legally and factually, for the jury to have found that Ransdell unlawfully restrained Sierra, a child younger than fourteen years of age.

EXHIBITION OF DEADLY WEAPON IN THE COMMISSION OF AN OFFENSE

The State concentrated a great deal on the fact that Ransdell was, at one time during the episode, carrying around an aluminum baseball bat which his elder son (then age six) used when playing T-ball. They elicited testimony that the boy had gotten in trouble because he had put a dent in the family's lawnmower by hitting it with the bat; accordingly, it was substantial enough that it could have been used as a deadly weapon.

As mentioned before, whether or not the T-ball bat carried by Ransdell during the incident constituted the use of a deadly weapon becomes important because Section 12.35 of the Texas Penal Code provides that an individual adjudged guilty of a state-jail felony shall be punished for a third-degree felony if it is shown on the trial of the offense that a deadly weapon was used or exhibited during the commission of the offense. Tex. Penal Code Ann. § 12.35 (Vernon 2003). Section 1.07(17) of the Texas Penal Code defines a "deadly weapon" as being "(A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or (B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." Tex. Penal Code Ann. § 1.07(17) (Vernon Supp. 2006). Certainly, a child's T-ball baseball bat does not fit within the category (A) above because it was not designed, made, or adapted as set out in the statute. However, it is possible that it "in the manner of its use or intended use" would be capable of inflicting death or serious bodily injury. Not even a knife is necessarily a deadly weapon per se. Brown v. State, 716 S.W.2d 939, 946 (Tex. Crim. App. 1986). There are certain factors which a jury may consider when analyzing whether an object is a deadly weapon: (1) the physical proximity between the alleged victim and the object; (2) any threats or words used by the accused; (3) the size and shape of the object; (4) the potential of the object to inflict death or serious injury; and (5) the manner in which the accused allegedly used the object. Id. at 946-47; Williams v. State, 575 S.W.2d 30, 32-33 (Tex. Crim. App. [Panel Op.] 1979); see also Adame v. State, 69 S.W.3d 581, 584 (Tex. Crim. App. 2002) (Meyers, J., concurring); Nunez v. State, 117 S.W.3d 309, 323 (Tex. App.--Corpus Christi 2003, no pet.); In re S.B., 117 S.W.3d 443, 446-47 (Tex. App.--Fort Worth 2003, no pet.). No one factor is determinative, and each case must be examined on its own facts. Adame, 69 S.W.3d at 584; Brown, 716 S.W.2d at 946-47; Nunez, 117 S.W.3d at 323.

All of the testimony shows that Ransdell had been carrying the bat about as a weapon--but not as a weapon to be used against Sierra or any other member of his family. Rather, all of the evidence reveals that Ransdell intended this bat to aid him in protecting them against the totally nonexistent "people" he believed posed a threat to them. He did not wave it about or thrash the air with it; he did not threaten them with it. ⁽⁵⁾ It was plainly proven that Ransdell and the bat were in close physical proximity to Sierra, that the bat was of a physical size and shape to inflict harm, and that (should he have intended its use in that fashion) there was the potential of using the T-ball bat to inflict death or serious injury. Many objects of a usually apparently-mundane character could fit those characteristics. ⁽⁶⁾ However, there is no evidence to support any claim that he threatened to use the bat on Sierra, that Sierra was afraid that he would use it on her, or that Ransdell used it in any fashion to restrain her movements from the house. The only entities upon whom Ransdell intended to use the bat, if necessary, were the "people" whom he believed were threatening his family--and the "people" did not exist. This is not to say that, considering Ransdell's apparent propensity toward wild irrationality, that the bat could hypothetically be used as a deadly weapon; for instance, in some other circumstance, he could irrationally decide that a danger arose from his family and not the chimera he perceived that night was dangerous. But the fact remains that on that night, his intended use of the bat was to protect his family and not to place them in danger. The danger or threat posed must be real and not simply hypothetical. To sustain a deadly weapon finding, there must be evidence that others were actually endangered, not merely there was a hypothetical potential for danger. Cates v. State, 102 S.W.3d 735, 738 (Tex. Crim. App. 2003). "While a deadly weapon finding does not require that the object actually cause death or serious bodily injury, it does require that the object have more than a hypothetical capability of causing death or serious bodily injury." Johnston v. State, 115 S.W.3d 761, 764 (Tex. App.--Austin 2003), aff'd, 145 S.W.3d 215 (Tex. Crim. App. 2004).

We find that the evidence is legally insufficient to support the charge that Ransdell used or exhibited a deadly weapon during the commission of the offense. This point of error is granted.

SUBSTANTIAL RISK OF SERIOUS BODILY INJURY

It is quite obvious that Ransdell suffers from extreme mental illnesses. His conduct on November 4, 2005, was clearly erratic, wild, crazy, and hellish to those who had to witness it. One can speculate upon what dire things might have occurred on that early morning if Ransdell's delusions had taken a slightly different twist than they did that night. However, it is not the province of the jury to have speculated on what might have occurred but, rather, what actually did occur.

As the testimony and evidence set out above show, during the entire episode, the source of Ransdell's anxiety was the perceived danger which the "people" posed to his family. He barricaded the door, ranted and raved, armed himself with a small bat, and finally placed a 9-1-1 emergency call himself in order to protect his family and to extricate them from what he apparently believed to be some perceived but imaginary threat to them. No doubt, his rantings about the invisible "people" and his overall conduct terrified the small children; it is impossible to gauge the adverse psychological impact which this kind of conduct has upon small children who are placed in a position of watching their father exhibiting this type of conduct. It is important to note that any damage done to the children in this incident would be to their psyches and not to their persons.

However, there was never any evidence presented that he threatened his family (including Sierra), physically abused them in any fashion, ⁽⁷⁾ or placed them in physical danger. "Serious bodily injury" is defined by Section 1.07(46) of the Texas Penal Code as being "bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." Tex. Penal Code Ann. § 1.07(46) (Vernon Supp. 2006). Damage to the child's mental well-being does not fall within that definition. The evidence is not legally sufficient to show that he placed Sierra at a substantial risk of serious bodily injury.

The jury charge included the lesser-included offense of the state-jail felony of the illegal restraint of a child less than seventeen years of age. We find this to have been the appropriate finding and sentence. A court of appeals may reform a judgment of conviction to reflect conviction of a lesser-included offense only if (1) the court finds that the evidence is insufficient to support conviction of the charged offense, but sufficient to support conviction of the lesser-included offense, and (2) either the jury was instructed on the lesser-included offense (at the request of a party or by the trial court sua sponte) or one of the parties asked for but was denied such an instruction. Collier v. State, 999 S.W.2d 779 (Tex. Crim App. 1999).

Because there was legally insufficient evidence to support the jury's deadly weapon finding, we sustain Ransdell's point regarding that issue. Accordingly, the trial court's judgment is modified to delete the affirmative finding that a deadly weapon was used during the commission of the offense and to delete the finding that Ransdell exposed Sierra to a substantial risk of serious bodily injury. See Williams v. State, 970 S.W.2d 566 (Tex. Crim. App. 1998) (remedy when affirmative finding erroneously made). As reformed and modified, Ransdell's conviction of the state-jail offense of unlawful detention of a child less than seventeen years of age is affirmed, the punishment is reversed, and we remand the case to the trial court for a determination of the punishment for that offense.

Bailey C. Moseley

Justice

Date Submitted: April 19, 2007

Date Decided: May 8, 2007

Do Not Publish

1. The jury also found that, in doing this act, Ransdell exhibited a deadly weapon which, pursuant to Section 12.35(c)(1) of the Texas Penal Code, converts a state-jail felony to a third-degree felony. See Tex. Penal Code Ann. § 12.35(c)(1) (Vernon 2003).

2. Under Section 20.01 of the Texas Penal Code, the word "restrain" includes the restriction of a person's movements without consent. Restraint of a child less than fourteen years old can be accomplished by any means (including the acquiescence of the victim) if the parent, guardian, or person or institution acting in loco parentis has not acquiesced in the confinement. Tex. Penal Code Ann. § 20.01 (Vernon Supp. 2006).

3. At trial, Ransdell's attorney had requested (but had been denied) a jury instruction that would have raised the affirmative defense set out in Section 20.02(b) of the Texas Penal Code. See Tex. Penal Code Ann. § 20.02(b). However, no point of error was raised concerning the denial of this request and we do not consider it.

4. In one statement, she says that he was not allowing them to leave the house; in the other, she was saying that they nevertheless never attempted to leave.

5. The following exchange between the State and Bonnie is illustrative:

Q. And he was roaming through the house at 3:00 in the morning with the bat?

A. Well, as I stated several times before, and we went through this before about what I'm saying, when he got the bat it was all of about walking down the hall to the living room and me telling him put the bat up, and him walking back down the hallway. He was not roaming through the house. He was not screaming. He was not yelling. He was not waving the bat. He was not threatening us with the bat.

Q. Was he agitated when he had the bat?

A. Not at me. Not at the children.

6. Andrea Yates drowned her five children in a bathtub of water. See Yates v. State, 171 S.W.3d 215 (Tex. App.--Houston [1st Dist.] 2005, pet. ref'd).

7. At one point in time, Ransdell was holding Zach, the four-year-old in his arms. The child leaned over to go to the arms of his mother. Ransdell believed the child to be falling and grabbed him tightly, causing Zach to cry and complain that Ransdell had hurt his leg.

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                                                         In The

                                                Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

                                                             No. 06-10-00112-CV

                                KERRI SUE HASS CULVER, Appellant

                                      BILLY RAY CULVER, Appellee

                                      On Appeal from the 402nd Judicial District Court

                                                             Wood County, Texas

                                                          Trial Court No. 2010-602

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                                    Opinion by Chief Justice Morriss

                                                                   O P I N I O N

            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 Brady^[3] 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 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 second time, “chased [Billy] around the dining room table,” and then chased Billy into the back yard.  Billy called the police.  Billy testified that, on this occasion, Kerri threw her telephone, which hit him “in the back shoulder.”  Billy testified the phone caused “physical pain.”  Billy testified, during cross-examination, that he told the police that he did not want Kerri to go to jail, that he did not want to file a report, and that he just wanted Kerri to leave.  The fact that Billy suffered only physical pain does not prevent the act from being an assault.  The term “bodily injury” is defined as “physical pain, illness, or any impairment of physical condition.”  Tex. Penal Code Ann. § 1.07(a) (8) (West 2011).  Further, Kerri should have known Billy would regard being hit in the shoulder by a telephone as offensive.  The trial court could have reasonably concluded Kerri assaulted Billy.

            Billy also introduced sufficient evidence for the trial court to conclude family violence would occur in the future.  Billy testified he had been stalked by Kerri, who had followed Billy to a mall in Sulphur Springs,^[14] where they argued.  When asked, since the August 18 incident, the number of times Kerri “has appeared uninvited around [him],” Billy testified that “[t]hey are too numerous” and explained:

She drives by at all hours of the day and night.  She leaves messages, telephone calls.  I never know if she’s going to walk up behind me in any store.

The trial court could have reasonably concluded family violence was likely to occur in the future.

            The trial court could reasonably conclude Billy was testifying truthfully.  The credibility of witnesses is within the sole province of the fact-finder.  Walker & Assocs. Surveying v. Austin, 301 S.W.3d 909, 916 (Tex. App.—Texarkana 2009, no pet.).  The trial court did not abuse its discretion in finding that family violence had occurred and would likely occur in the future.  We overrule Kerri’s points of error attacking the sufficiency of the evidence.

2.         Refusing Kerri’s Motion for Discovery Was Not Error

            In one point of error, Kerri contends the trial court erred in failing to grant her motion for discovery.  Kerri filed a motion for discovery two days before the hearing in which she requested that Billy provide her with “all evidence including audio, video, photographs, written reports, etc. that he intends to enter as evidence in the above referenced cause.”  The record does not contain any ruling on this motion.^[15]

            Kerri has not directed this Court to any specific provision for discovery in proceedings relative to protective orders, which are placed on an extremely expedited schedule.  An ex parte temporary protective order expires within twenty days (although it may be “extended for additional 20-day periods”), and Section 84.001 provides that a hearing on an application for a protective order should occur within fourteen days.  Tex. Fam. Code Ann. §§ 83.002, 84.001 (West 2008). 

            In the absence of a specific provision, the general discovery provisions of the Texas Rules of Civil Procedure would apply.  See Tex. R. Civ. P. 190–215.6.  The record does not contain any court order modifying the default deadlines for discovery or any request for such order.  Assuming discovery is available, given the expedited schedule and lack of a specific discovery provision granting discovery in the context of protective orders, the trial court did not err in failing to rule on Kerri’s motion for discovery.  Without a request and showing of good cause to modify the default discovery deadlines, Kerri’s motion for discovery was not timely.  A request for production must be filed thirty days before the end of the discovery period, which ends thirty days before trial.  See Tex. R. Civ. P. 190.3, 196.1.  While we recognize this deadline was impossible to comply with under the expedited trial schedule for applications for protective orders, this deadline applies in the absence of a court order modifying the default deadlines.  Since the record does not contain any such court order, agreement, or other modification of the discovery deadlines, Kerri’s motion was not timely.  We overrule Kerri’s point of error regarding the motion for discovery.

3.         Denying Kerri’s Motions for Continuance Was Not Error

            In her first and second points of error, Kerri also complains about the trial court denying her motions for continuance.  In her first, second, and fourth points of error, Kerri claims the trial constituted “trial by ambush.”  Kerri filed her first motion for continuance two days before the first hearing.  In this motion, Kerri alleges that she had filed “open records request[s] with multiple law enforcement agencies” and sufficient time had not passed to obtain the documents.  The day before the hearing was scheduled to resume following disposition of Kerri’s motion to recuse, Kerri filed a second motion for continuance that alleged she had “hired counsel today to represent her in this matter and counsel has not and will not have adequate time to prepare for trial before tomorrow.”^[16]

            We review the decision to grant or deny a motion for continuance for an abuse of discretion.  Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986); In re A.D.A., 287 S.W.3d 382, 387 (Tex. App.—Texarkana 2009, no pet.).  The Texas Rules of Civil Procedure state that a continuance shall not be granted “except for sufficient cause supported by affidavit, or by consent of the parties, or by operation of law.”  Tex. R. Civ. P. 251.  Neither motion for continuance was accompanied by an affidavit, and there is no indication in the record that Billy consented to either motion.  The trial court did not abuse its discretion in denying the motions for continuance.  See In re R.A.L., 291 S.W.3d 438, 448 (Tex. App.—Texarkana 2009, no pet.).

4.         This Case Is Not Reversible for Ineffective Assistance of Counsel

            The doctrine of ineffective assistance of counsel does not apply to civil cases where there is no constitutional^[17] or statutory right to counsel.  See, e.g., McCoy v. Tex. Instruments, Inc., 183 S.W.3d 548, 553 (Tex. App.—Dallas 2006, no pet.); Cherqui v. Westheimer St. Festival Corp., 116 S.W.3d 337, 343 (Tex. App.—Houston [14th Dist.] 2003, no pet.); cf. In re M.S., 115 S.W.3d 534, 544 (Tex. 2003) (“[T]he statutory right to counsel in parental-rights termination cases embodies the right to effective counsel.”).  Kerri has not provided this Court with any authority that there is a right to effective assistance of counsel in a protective order case—and we are not aware of any.  We overrule this point of error.

5.         This Case Is Not Subject to the Brady Rule

            In two points of error, Kerri argues that the State withheld exculpatory evidence and cites Brady, 373 U.S. 83.  Under Brady, a prosecutor in a criminal proceeding has an affirmative duty to disclose exculpatory evidence when a defendant timely files a “Brady” motion.  Id.  Kerri did not file a “Brady” motion.  Further, Kerri has not provided this Court with any authority that Brady is applicable to a protective order proceeding—a civil proceeding—and we are not aware of any.  We overrule these points of error.

6.         Kerri Has Not Established Misconduct by Opposing Counsel

            In two points of error, Kerri complains that the district attorney’s office engaged in prosecutorial misconduct and “trial by ambush.”  Other than citing criminal cases and Rule 806 of the Texas Rules of Evidence,^[18] Kerri has not provided this Court with any authority concerning this issue.^[19]  As noted above, this case is a civil proceeding.

            To the extent the district attorney’s office may have had a duty to see that justice was done, Kerri has failed to allege any facts constituting prosecutorial misconduct.  Kerrie argues “[n]ot only did the prosecutor know the state’s witness was committing perjury, the prosecutor made a barrage of allegations against Appellant . . . .”  Kerri also complains about the district attorney’s characterization of her conduct as “bizarre and dangerous” during his rebuttal closing argument.  During closing argument, the district attorney argued there had been “several violations of Texas law” and “domestic violence in the past.”  No specific allegations were made.  In its rebuttal closing argument, the prosecutor’s argument was as follows, in its entirety:

            Ms. Kerri Sue Hass’ behavior is bizarre and dangerous, from filing a motion to dismiss a divorce to persistently acting in contempt of this court, and finally making a threat, you’re going to hurt somebody.  Mr. Culver is exercising his legal right to bring an action before this court and he’s been threatened for it.

            And her behavior in stalking him, showing up at her mother-in-law’s house uninvited, interfering with 911 calls, using a car in an aggressive manner, and persistently violating this court order indicates she is a danger and should not have firearms, and we shouldn’t reach the point if she wanted him hurt, then he would have been in a ditch.

            If we want him protected and not to be the subject of this threat and actually be hurt, then we need the protective order.  That’s the logic.  We have domestic violence in the past.  There’s a real threat that it will happen in the future.  The State moves for protective order.

While the district attorney’s choice of words—”bizarre and dangerous”—are harsh, the choice does not constitute error.  We note no objection was made to the district attorney’s argument.^[20]  Further, “[c]ounsel should be allowed wide latitude in arguing the evidence and reasonable inferences to the jury.”  Anderson v. Vinson Exploration, 832 S.W.2d 657, 667 (Tex. App.—El Paso 1992, writ denied).

            Kerri also takes issue with the reference to past domestic violence.  As explained above, the statutory definition of family violence does not require actual physical injury.  The district attorney’s statement was a reasonable interpretation of the evidence.  The district attorney’s reference to the motion to dismiss the divorce may have referred to facts not admitted into evidence.^[21]  This reference does not, however, constitute prosecutorial misconduct, and no objection was made to this statement.  The error, if any, has not been preserved for appellate review.  Tex. R. App. P. 33.1.  Other than the divorce reference, the prosecution’s argument consists of a permissible interpretation of the evidence presented at the hearing.

            Kerri’s remaining complaint concerns the trial court sustaining Billy’s evidentiary objection to her use of the 9-1-1 recording of July 29, 2010.  As discussed above, any error concerning the exclusion of these pieces of evidence has not been preserved for review.

            We overrule Kerri’s points of error alleging prosecutorial misconduct.

7.         Kerri’s Second Motion to Recuse Did Not Trigger Mandatory Referral

            Kerri also complains that the trial court failed both to refer her second motion to recuse to an administrative judge and to refrain from making any further rulings while the motion was pending.^[22]  Kerri’s second motion to recuse, which was not verified, was filed October 20, 2010.  On October 28, 2010, the trial court signed a second modified judgment.  Kerri alleges the trial court failed to refer the second recusal motion to an administrative judge and refused to refrain from making any additional rulings while the motion was pending, rendering the modified judgment signed October 28, 2010 void.^[23]  Under Rule 18a, a trial court is required to either recuse or refer the motion to an administrative judge.  Tex. R. Civ. P. 18a(c), (d).  However, a motion requesting recusal must be filed at least ten days before trial and must be verified.  Tex. R. Civ. P. 18a(a).  The mandatory referral provisions do not come into play when the motion is not filed ten days before trial.  Spigener v. Wallis, 80 S.W.3d 174, 181 (Tex. App.—Waco 2002, no pet.); Autry v. Autry, 646 S.W.2d 586, 588 (Tex. App.—Tyler 1983, no writ).  Kerri’s second motion to recuse was filed approximately three weeks after the hearing concluded and Kerri has not alleged any exception to this general rule.^[24]  Further, Kerri’s motion was not verified and, thus, did not comply with Rule 18a.  See Tex. R. Civ. P. 18a.  The trial court did not err in failing to refer this unverified and untimely motion to an administrative judge and was not prohibited from making any further rulings.

8)  Failing To File Findings of Fact and Conclusions of Law Was Not Reversible Error

            Kerri complains that the trial court failed to file findings of fact and conclusions of law.  On October 25, 2010, Kerri requested findings of fact and conclusions of law.  Although requests for findings of fact and conclusions of law filed before the trial court’s modified judgment are premature, Rule 306c provides that such requests shall be deemed filed on the date of, but subsequent to, the judgment.  Tex. R. Civ. P. 306c.  On December 14, 2010, Kerri filed a notice of past due findings of fact and conclusions of law.  “ Following a proper request and reminder, it is mandatory for a trial court to make and file findings of fact and conclusions of law.”  In re Grossnickle, 115 S.W.3d 238, 253 (Tex. App.—Texarkana 2003, no pet.).  Failing to file findings of fact and conclusions of law was error.

            The error, though, is not reversible.  Although “harm to the complaining party is presumed unless the contrary appears on the face of the record,” a trial court’s “failure to make findings is not harmful error if ‘the record before the appellate court affirmatively shows that the complaining party suffered no injury.’”  Tenery v. Tenery, 932 S.W.2d 29, 30 (Tex. 1996) (quoting Cherne Indus. v. Magallanes, 763 S.W.2d 768, 772 (Tex. 1989)); Las Vegas Pecan & Cattle Co. v. Zavala County, 682 S.W.2d 254, 256 (Tex. 1984).  When the trial court announces its reasons for its ruling in open court, the appellant’s ability to present the appeal is not harmed because there was no need to guess the reasons for the trial court’s adverse ruling.  See, e.g., Sagemont Plaza Shopping ex rel. O’Connor & Assocs. v. Harris County Appraisal Dist., 30 S.W.3d 425, 427 (Tex. App.—Corpus Christi 2000, pet. denied) ; Tex. Workers’ Comp. Ins. Fund v. Ashy, 972 S.W.2d 208, 210–12 (Tex. App.—Beaumont 1998, pet. denied); Elizondo v. Gomez, 957 S.W.2d 862, 865 (Tex. App.—San Antonio 1997, writ denied).  In this case, the trial court announced its reasons for the ruling in open court, stating that domestic violence had occurred and would likely occur in the future.  The trial court’s statements on the record clearly provide the basis for its ruling.  On appeal, Kerri has not explained how she was prevented from properly presenting the case to this Court.  The trial court’s error did not result in reversible error.  See Tex. R. App. P. 44.1.

9.         We Cannot Reverse the Trial Court Without Reversible Error

            Kerri also asserts that the modified judgments are void.  Billy agrees with her, states that Kerri received inadequate notice, and requests this Court reverse the judgments of the trial court.

            The trial court rendered judgment September 28, 2010, and then, while it retained plenary jurisdiction, signed two modified judgments, respectively dated September 29, 2010, and October 28, 2010.

            Billy assumes, as argued by Kerri, that the “modified judgments” are modifications of a protective order under Chapter 87 of the Texas Family Code and that inadequate notice was provided under Section 87.003.  See Tex. Fam. Code Ann. §§ 87.001, 87.003 (West 2008).  Although this Court has held the judgments signed September 29, 2010, and October 28, 2010, are “modified” judgments,^[25] this Court has not held they were modifications within the meaning of, and subject to the provisions of, Chapter 87 of the Texas Family Code.  We are not aware of any authority that Chapter 87 must be satisfied to modify a protective order under Rule 329b of the Texas Rules of Civil Procedure, in situations, within the plenary power of the trial court, in which there is no new evidence taken or a new hearing held.  We believe that a trial court may modify a protective order over which it still has plenary power in the same manner as any other judgment.  If the trial court’s plenary jurisdiction had expired, Chapter 87 might apply depending on the circumstances.  Because the trial court’s plenary jurisdiction had not expired, the trial court could modify the judgment without complying with Section 87.003.  The judgment signed October 28, 2010, was not a modification of an existing protective order within the meaning of Chapter 87—it did not include new substantive changes based on new evidence of changed conditions—rather, it was a modification of the protective order within the plenary power of the trial court, based on the original evidence and hearing—an important distinction.

            In addition, Kerri argues her due process rights were violated.  Billy also agrees that a due process violation has occurred, reasoning that Section 87.003 of the Texas Family Code requires a hearing and that due process requires notice and an opportunity to be heard at a meaningful time and in a meaningful manner.  Kerri was provided with notice of the hearing in this cause, and the hearing provided Kerri an opportunity to be heard at a meaningful time and a meaningful manner.  Because a trial court may modify a judgment while it still has plenary jurisdiction pursuant to Rule 329b of the Texas Rules of Civil Procedure, we conclude that the trial court was not required to hold an additional hearing to vacate, set aside, modify, or amend the judgment under that rule.  Kerri has not established a violation of her due process rights.

            But does Billy’s “concession” that reversible error occurred require this Court to reverse the judgments of the trial court even in the absence of reversible error?  Billy, the appellee, has not requested that we affirm the judgment of the trial court.  Instead, Billy requests this Court to reverse the judgments of the trial court and remand for further proceedings.  Ordinarily, a party is not entitled to relief which has not been requested.  See, e.g., Horrocks v. Tex. Dep’t of Transp., 852 S.W.2d 498, 499 (Tex. 1993); In re Estate of Wilson, 252 S.W.3d 708, 715 (Tex. App.—Texarkana 2008, no pet.).  The Texas Supreme Court, though, has held “[a] reviewing court can reverse only when there is error in the judgment of the court below.”  Davis v. Bryan & Bryan, Inc., 730 S.W.2d 643, 644 (Tex. 1987); Chrisom v. Brown, 246 S.W.3d 102, 116 (Tex. App.—Houston [14th Dist.] 2007, no pet.).  In the absence of reversible error, we are prohibited from reversing the judgment of the trial court.

            We overrule the motion for rehearing.  We affirm the trial court’s judgment.

                                                                                    Josh R. Morriss, III

                                                                                    Chief Justice

Date Submitted:          October 3, 2011

Date Decided:             December 15, 2011

---

^[1]Kerri’s request for an en-banc rehearing is overruled as moot.  As a court of appeals with three justices, every opinion of this Court is en banc.

^[2]The record indicates a divorce was pending, but does not specify the status of the divorce proceeding.  A protective order issued in the context of a divorce proceeding cannot be appealed until the divorce is final.  See Tex. Fam. Code Ann. § 81.009(b) (West 2008).  The application in this case was not filed as a motion in a suit for dissolution of a marriage.  Whether this section applies in this case has not been assigned for our review by the parties.  This Court has held protective orders rendered in separate cause numbers and treated entirely separate from any divorce proceedings are not governed by Section 81.009.  See Davis v. Davis, No. 06-07-00059-CV, 2007 Tex. App. LEXIS 4298 (Tex. App.—Texarkana June 1, 2007, no pet.) (mem. op.).

^[3]Brady v. Maryland, 373 U.S. 83 (1963).

^[4]In her motion for rehearing, Kerri alleges that, because the two judgments filed September 28 and 29, 2010, each contain the same date and signature, the September 29 judgment is “merely a photocopy” of the September 28 judgment and does not have “an original signature by the trial judge.”  Kerri claims that the October 28 modified judgment was entered “because the trial court noticed it had not actually signed the September 29, 2010 modified judgment.”  The two judgments filed September 28–29 are both dated September 28 and contain identical times and signatures.  The two judgments, however, contain substantive differences.  All of the boxes in Section 4 of the judgment filed September 28, except the box prohibiting possession of firearms, were left blank.  The various boxes were checked in the judgment filed September 29.  The record contains a motion for judgment nunc pro tunc filed by Billy September 29.  The judgment filed September 29 is not merely a photocopy of the September 28 judgment.  Kerri did not complain about this issue before our original opinion in this case.  In fact, Kerri’s appellant’s brief contains the following statement:  “On September 29, 2010, one day later, the trial court entered a Nunc Pro Tunc Order in the same cause without holding a hearing.”  Kerri has waived any complaint concerning this irregularity.  Besides, this issue would have no effect on any issue argued on appeal.

^[5]The motion for new trial did not contain an accompanying affidavit.  The record contains an order setting a hearing on the motion for new trial to be held October 21, 2010.  Neither the docket sheet, nor anything in the record indicates any hearing was held that date. 

^[6]Because Kerri had filed a motion for new trial, the trial court’s plenary jurisdiction had been extended.  Tex. R. Civ. P. 329b.

^[7]The front page of the reporter’s record of this hearing specifies that it occurred September 28, 2010.  The third page of the reporter’s record and the docket sheet, though, specify that this hearing occurred November 8, 2010.

^[8]Kerri argues she is a disabled person living on a fixed income.  Kerri alleges Billy left her while she was pregnant, the couple was over $20,000.00 in debt, the couple’s land was in foreclosure, and their residence’s electricity was cut off.  While we sympathize with Kerri’s claimed hardships, we note these facts are not in the record.  On cross-examination, Billy admitted he had told the police that Kerri had a disability, receives “SSI disability,” and had not been taking her medication at the time of the Enchanted Lakes incident, the incident in which Kerri was driving, Billy was walking, and Kerri got aggressive with the vehicle.  Although Kerri made some of the remaining factual statements on the record, Kerri was not testifying at the time.

^[9]Kerri attempted to enter into evidence a “copy of the 911 recording” (presumably from the Enchanted Lakes incident) and Billy objected, stating, “[I]t’s not properly authenticated.”  The trial court sustained Billy’s objection.  Kerri also attempted to have Billy read the police report.  The trial court sustained the State’s objection that the report was hearsay.  To challenge the exclusion of evidence, a party must:  (1) attempt to introduce the evidence; (2) if an objection is made, specify the purpose for which the evidence is offered and give the trial court reasons why the evidence is admissible; (3) obtain a ruling from the court; and (4) if the court rules the evidence inadmissible, make a record, either through an informal offer of proof or a formal bill of exceptions, of the evidence the party desires admitted.  See Tex. R. App. P. 33.2; Tex. R. Evid. 103; see also Bobbora v. Unitrin Ins. Servs., 255 S.W.3d 331, 335 (Tex. App.—Dallas 2008, no pet.); Fletcher v. Minn. Mining & Mfg. Co., 57 S.W.3d 602 (Tex. App.—Houston [1st Dist.] 2001, pet. denied).  Kerri failed to specify to the trial court why both pieces of evidence were admissible.  Kerri also did not make an offer of proof or file a formal bill of exceptions.  Although Kerri was proceeding pro se at the time of the objection, it is well-established that a pro se litigant “must comply with all applicable procedural rules” and is held to the same standards as a licensed attorney.  Weaver v. E-Z Mart Stores, Inc., 942 S.W.2d 167, 169 (Tex. App.—Texarkana 1997, no pet.).  At the second hearing, Kerri’s counsel—who had one day to prepare—attempted to have Billy authenticate the 9-1-1 recording by reading the date and cause number printed on it.  The district attorney objected again, and the trial court sustained the objection.  Again, the trial court was not provided with reasons why the evidence was admissible, and no attempt to make an offer of proof or file a bill of exceptions was made.  Any error in these rulings has not been preserved for appellate review.

^[10]Kerri argues Billy was required to prove he was placed in fear of his life, citing Thompson v. Thompson-O’Rear, No. 06-03-00129-CV, 2004 Tex. App. LEXIS 5033 (Tex. App.—Texarkana June 8, 2004, no pet.).  In that case, this Court did not hold fear of death was required.  In Thompson, this Court held the evidence did not establish the acts alleged “reasonably place[d] one in fear of imminent physical harm or bodily injury.”  Id.  As discussed below, the evidence is sufficient in this case, and Thompson is distinguishable from this case.

^[11]See Tex. Fam. Code Ann. § 88.002(5) (West 2008).

^[12]Kerri alleges “[t]he only evidence that Mr. Culver offered was his testimony which was hearsay.”  “‘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).

^[13]Kerri alleges she went to the house to retrieve a trailer Billy had taken without her permission.  Kerri claims when she contacted the police to report the stolen trailer, the police instructed her to contact Billy since it was registered to him.  Kerri did not testify at the hearing.  Billy testified he took a trailer August 17, 2010, because it “contained personal property of mine.”

^[14]When Billy noticed Kerri following him, he contacted the sheriff’s department, who escorted Billy out of town until it appeared Kerri was “headed back to Mineola.”  Kerri, though, later appeared at the mall.

^[15]Nothing shows that this motion was ever brought to the attention of the trial court.

^[16]At the time this motion for continuance had been filed, approximately twenty-eight days had passed since her original notice of the application for a protective order and twelve days had passed since she received notice of the date trial would resume.  To the extent Kerri’s newly retained counsel was not prepared for trial, the fault lies with Kerri choosing not to retain counsel until the eve of the hearing.

^[17]“The Sixth Amendment grants an indigent criminal defendant the right to counsel,” but does not apply to civil cases.  Turner v. Rogers, ___ U.S. ___, 131 S.Ct. 2507, 2510 (2011).  In a civil case, the right to counsel under the Due Process Clause is determined by conducting an analysis to determine “whether the ‘specific dictates of due process’ require appointed counsel.” Id. (quoting Mathews v. Eldridge, 424 U.S. 319, 335 (1976)).  In making this determination, courts should consider the Eldridge factors, which include:

(1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and probable value, if any, of additional procedural safeguards; and (3) the Government’s interest, including the fiscal and administrative burdens that the additional or substitute procedures would entail.

Eldridge, 424 U.S. at 335; see Turner, 131 S.Ct. at 2510.

^[18]Kerri’s citation is “TRCP 806.”  The abbreviation TRCP generally refers to the Texas Rules of Civil Procedure.  Rule 806 of the Texas Rules of Civil Procedure concerns a claim of improvements in a trespass-to-try-title action.  See Tex. R. Civ. P. 806.  We assume Kerri is referring to Rule 806 of the Texas Rules of Evidence.  SeeTex. R. Evid. 806.

^[19]This issue could be overruled as inadequately briefed.  See Tex. R. App. P. 38.1(h).

^[20]To establish that an improper jury argument is reversible error, an appellant must prove:  (1) an improper jury argument; (2) the improper argument was not invited or provoked; (3) the error was preserved; and (4) “the error was not curable by an instruction, a prompt withdrawal of the statement, or a reprimand by the trial court.”  Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835, 839 (Tex. 1979); Lone Star Ford, Inc. v. Carter, 848 S.W.2d 850, 853 (Tex. App.—Houston [14th Dist.] 1993, no writ).

^[21]Our review of the record reveals no evidence concerning this allegation.

^[22]Kerri’s first motion to recuse was untimely.  Out of an abundance of caution, the trial court referred the first motion to recuse to an administrative judge and refrained from making any further rulings until the first motion to recuse had been disposed of.

^[23]Unlike disqualification, “the erroneous denial of a recusal motion does not void or nullify the presiding judge’s subsequent acts.”  In re Union Pac. Res. Co., 969 S.W.2d 427, 428 (Tex. 1998) (orig. proceeding).

^[24]Even if Kerri had argued an exception, the motion was not filed as soon as possible after she learned of the “grounds” for recusal.  Thus, even if an exception applied, the motion would still be untimely.  While this case was on appeal, the trial court referred this motion to the administrative judge, and the motion was denied as “untimely and facially insufficient.”

^[25]Culver, 2011 Tex. App. LEXIS 2236.