AFFIRMED and Opinion Filed March 22, 2022
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-20-00647-CV
JARELLE HIGHTOWER, Appellant V. CHELSEA PEARL, Appellee
On Appeal from the 59th Judicial District Court Grayson County, Texas Trial Court Cause No. FA-17-0186
MEMORANDUM OPINION ON REHEARING Before Justices Pedersen, III, Goldstein, and Smith Opinion by Justice Smith
Pro se appellant Jarelle Hightower appeals the trial court’s issuance of a
protective order on behalf of appellee Chelsea Pearl, formerly Chelsea Wade.
Because we find the evidence sufficient to support the trial court’s finding that
family violence had occurred and was likely to occur in the future, we affirm.
Procedural History
Hightower filed a petition seeking to be named sole managing conservator of
his and Pearl’s son on February 2, 2017. On February 14, 2017, the Grayson County
Criminal District Attorney’s Office (the State) filed an application for protective order on behalf of Pearl. The protective order detailed four incidents in 2016 in
which Hightower assaulted or threatened Pearl or assaulted one of her children. The
trial court conducted a hearing and issued a protective order on March 7, 2017, with
an expiration date of March 7, 2019.
Hightower filed his first notice of appeal on April 3, 2017. We dismissed the
appeal for want of jurisdiction because a final, appealable order providing for
support or possession of or access to the child had not been entered in the underlying
suit affecting the parent-child relationship. See TEX. FAM. CODE ANN. § 81.009(c).
The trial court entered a final, appealable order on June 22, 2020. Hightower
filed a second notice of appeal on June 29, 2020. On September 9, 2020, we again
dismissed this appeal for want of jurisdiction. Hightower filed a motion for
rehearing, which we granted on October 13, 2020. We concluded that we did have
jurisdiction over the March 7, 2017 protective order because the protective order
was issued during the pendency of a child custody suit and, thus, appeal could be
taken when the final order in the child custody case was signed on June 22, 2020.
See id. We vacated our September 9, 2020 opinion and reinstated the appeal.
After receiving Hightower’s brief, we notified him by letter that his brief did
not comply with Rule 38 of the Texas Rules of Appellate Procedure in that it did not
contain a proper list of all parties, index of authorities, statement of facts, certificate
of compliance, or certificate of service; the table of contents did not indicate the
subject matter of each issue; the statement of the case was not supported by record
–2– references; the brief did not contain a succinct, clear, and accurate statement of the
arguments supported by appropriate citations to legal authorities or to the record;
and the trial court’s judgment was missing from the appendix. See TEX. RS. APP. P.
9.4(i)(3); 9.5(e); 38.1(a)–(d), (g)–(i), (k)(1)(A). We cautioned Hightower that his
appeal may be dismissed if he did not file an amended brief that complied with the
rules within ten days.
Hightower filed an amended brief1 and corrected several of the previous
briefing deficiencies, but his argument section remains less than a page and still does
not contain any citations to the record. We can, however, discern from his brief that
he contends (1) Pearl did not present clear and convincing evidence of family
violence and, thus, the trial court’s finding that family violence had occurred and
would likely occur in the future was not supported by sufficient evidence; and (2)
the trial court was partial and biased. Because we can discern Hightower’s issues
on appeal, we will review them. See Bolling v. Farmers Branch Indep. Sch. Dist.,
315 S.W.3d 893, 896 (Tex. App.—Dallas 2010, no pet.) (“[W]e must be able to
discern what question of law we will be answering.”).
Sufficiency of the Evidence
1 Pearl did not file a brief in response. –3– We review the sufficiency of the evidence to support a family violence finding
under the traditional legal and factual sufficiency standards of review. In the Interest
of L.J.H., No. 05-21-00183-CV, 2021 WL 4260769, at *16–17 (Tex. App.—Dallas
Sept. 20, 2021, no pet.) (mem. op.); see also In re Doe, 19 S.W.3d 249, 253 (Tex.
2000) (“When the trial court acts primarily as a factfinder, appellate courts normally
review its determinations under the legal and factual sufficiency standards.”). In
determining whether the evidence is legally sufficient to support a challenged
finding, we review the evidence in the light most favorable to the finding. City of
Keller v. Wilson, 168 S.W.3d 802, 807, 827 (Tex. 2005). We must credit favorable
evidence if a reasonable factfinder could and disregard contrary evidence unless a
reasonable factfinder could not. Id. Anything more than a scintilla of evidence is
legally sufficient to support the challenged finding. Formosa Plastics Corp. USA v.
Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998).
When a party attacks the factual sufficiency of the evidence pertaining to a
finding on which the party did not have the burden of proof, we may set aside the
finding only if, after considering all the evidence, it is so contrary to the
overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v.
Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam); Harris Cty. v. Coats, 607
S.W.3d 359, 380–81 (Tex. App.—Houston [14th Dist.] 2020, no pet.). The amount
of evidence necessary to affirm a judgment is far less than the amount necessary to
reverse. Coats, 607 S.W.3d at 381.
–4– In order to render a protective order, a trial court must hold a hearing and, at
the close of the hearing, must find that family violence has occurred and is likely to
occur in the future. TEX. FAM. CODE. ANN. §§ 81.001, 85.001(a)–(b). “Family
violence” includes “dating violence” and is defined, in relevant part, as “an act, other
than a defensive measure to protect oneself,” that is committed by an actor against
an applicant for a protective order “with whom the actor has or has had a dating
relationship” and “is intended to result in physical harm, bodily injury, assault, or
sexual assault or that is a threat that reasonably places the . . . applicant in fear of
imminent physical harm, bodily injury, assault, or sexual assault.” Id. §§ 71.0021(a);
71.004(3).
As the trier of fact, the trial court is the sole judge of the credibility of the
witnesses and the weight to be given their testimony. City of Keller, 168 S.W.3d at
819. The trial court may believe all, part, or none of a witness’s testimony and
resolve any inconsistencies. Id. at 819–20.
At the hearing on the State’s application for protective order, Pearl testified
that she and Hightower were previously in an intimate relationship and lived
together. They had one child together. After they separated but before temporary
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AFFIRMED and Opinion Filed March 22, 2022
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-20-00647-CV
JARELLE HIGHTOWER, Appellant V. CHELSEA PEARL, Appellee
On Appeal from the 59th Judicial District Court Grayson County, Texas Trial Court Cause No. FA-17-0186
MEMORANDUM OPINION ON REHEARING Before Justices Pedersen, III, Goldstein, and Smith Opinion by Justice Smith
Pro se appellant Jarelle Hightower appeals the trial court’s issuance of a
protective order on behalf of appellee Chelsea Pearl, formerly Chelsea Wade.
Because we find the evidence sufficient to support the trial court’s finding that
family violence had occurred and was likely to occur in the future, we affirm.
Procedural History
Hightower filed a petition seeking to be named sole managing conservator of
his and Pearl’s son on February 2, 2017. On February 14, 2017, the Grayson County
Criminal District Attorney’s Office (the State) filed an application for protective order on behalf of Pearl. The protective order detailed four incidents in 2016 in
which Hightower assaulted or threatened Pearl or assaulted one of her children. The
trial court conducted a hearing and issued a protective order on March 7, 2017, with
an expiration date of March 7, 2019.
Hightower filed his first notice of appeal on April 3, 2017. We dismissed the
appeal for want of jurisdiction because a final, appealable order providing for
support or possession of or access to the child had not been entered in the underlying
suit affecting the parent-child relationship. See TEX. FAM. CODE ANN. § 81.009(c).
The trial court entered a final, appealable order on June 22, 2020. Hightower
filed a second notice of appeal on June 29, 2020. On September 9, 2020, we again
dismissed this appeal for want of jurisdiction. Hightower filed a motion for
rehearing, which we granted on October 13, 2020. We concluded that we did have
jurisdiction over the March 7, 2017 protective order because the protective order
was issued during the pendency of a child custody suit and, thus, appeal could be
taken when the final order in the child custody case was signed on June 22, 2020.
See id. We vacated our September 9, 2020 opinion and reinstated the appeal.
After receiving Hightower’s brief, we notified him by letter that his brief did
not comply with Rule 38 of the Texas Rules of Appellate Procedure in that it did not
contain a proper list of all parties, index of authorities, statement of facts, certificate
of compliance, or certificate of service; the table of contents did not indicate the
subject matter of each issue; the statement of the case was not supported by record
–2– references; the brief did not contain a succinct, clear, and accurate statement of the
arguments supported by appropriate citations to legal authorities or to the record;
and the trial court’s judgment was missing from the appendix. See TEX. RS. APP. P.
9.4(i)(3); 9.5(e); 38.1(a)–(d), (g)–(i), (k)(1)(A). We cautioned Hightower that his
appeal may be dismissed if he did not file an amended brief that complied with the
rules within ten days.
Hightower filed an amended brief1 and corrected several of the previous
briefing deficiencies, but his argument section remains less than a page and still does
not contain any citations to the record. We can, however, discern from his brief that
he contends (1) Pearl did not present clear and convincing evidence of family
violence and, thus, the trial court’s finding that family violence had occurred and
would likely occur in the future was not supported by sufficient evidence; and (2)
the trial court was partial and biased. Because we can discern Hightower’s issues
on appeal, we will review them. See Bolling v. Farmers Branch Indep. Sch. Dist.,
315 S.W.3d 893, 896 (Tex. App.—Dallas 2010, no pet.) (“[W]e must be able to
discern what question of law we will be answering.”).
Sufficiency of the Evidence
1 Pearl did not file a brief in response. –3– We review the sufficiency of the evidence to support a family violence finding
under the traditional legal and factual sufficiency standards of review. In the Interest
of L.J.H., No. 05-21-00183-CV, 2021 WL 4260769, at *16–17 (Tex. App.—Dallas
Sept. 20, 2021, no pet.) (mem. op.); see also In re Doe, 19 S.W.3d 249, 253 (Tex.
2000) (“When the trial court acts primarily as a factfinder, appellate courts normally
review its determinations under the legal and factual sufficiency standards.”). In
determining whether the evidence is legally sufficient to support a challenged
finding, we review the evidence in the light most favorable to the finding. City of
Keller v. Wilson, 168 S.W.3d 802, 807, 827 (Tex. 2005). We must credit favorable
evidence if a reasonable factfinder could and disregard contrary evidence unless a
reasonable factfinder could not. Id. Anything more than a scintilla of evidence is
legally sufficient to support the challenged finding. Formosa Plastics Corp. USA v.
Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998).
When a party attacks the factual sufficiency of the evidence pertaining to a
finding on which the party did not have the burden of proof, we may set aside the
finding only if, after considering all the evidence, it is so contrary to the
overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v.
Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam); Harris Cty. v. Coats, 607
S.W.3d 359, 380–81 (Tex. App.—Houston [14th Dist.] 2020, no pet.). The amount
of evidence necessary to affirm a judgment is far less than the amount necessary to
reverse. Coats, 607 S.W.3d at 381.
–4– In order to render a protective order, a trial court must hold a hearing and, at
the close of the hearing, must find that family violence has occurred and is likely to
occur in the future. TEX. FAM. CODE. ANN. §§ 81.001, 85.001(a)–(b). “Family
violence” includes “dating violence” and is defined, in relevant part, as “an act, other
than a defensive measure to protect oneself,” that is committed by an actor against
an applicant for a protective order “with whom the actor has or has had a dating
relationship” and “is intended to result in physical harm, bodily injury, assault, or
sexual assault or that is a threat that reasonably places the . . . applicant in fear of
imminent physical harm, bodily injury, assault, or sexual assault.” Id. §§ 71.0021(a);
71.004(3).
As the trier of fact, the trial court is the sole judge of the credibility of the
witnesses and the weight to be given their testimony. City of Keller, 168 S.W.3d at
819. The trial court may believe all, part, or none of a witness’s testimony and
resolve any inconsistencies. Id. at 819–20.
At the hearing on the State’s application for protective order, Pearl testified
that she and Hightower were previously in an intimate relationship and lived
together. They had one child together. After they separated but before temporary
orders were entered regarding custody and possession, the two agreed to a visitation
schedule. On December 7, 2016, Hightower came to her house to pick up their child,
as well as another child of Pearl’s that he had helped raise since birth. They argued
–5– in the driveway, and then Hightower tried to force his way into her house and
punched her in the face.
Hightower disputed Pearl’s account of the December 7 incident. He testified
that he asked Pearl for help with the car seats because he was in a leg brace due to a
recent knee surgery. Pearl refused. Pearl also refused to bring the children out to
the car even though they had an agreement for him to take them. Thereafter,
Hightower hopped up the stairs to enter the house and, when he reached for the door,
she jumped in front of him. He lost his balance and, while falling, wrapped his arms
around her causing them both to fall into the door. He denied punching her. Instead,
Hightower claimed that Pearl injured her face when she fell into the door.
Hightower’s friend, who was with him on December 7, also testified that she
did not see Hightower punch Pearl and that he just fell into her. Hightower told
Catherine Craig, an investigator with the Department of Family and Protective
Services, the same story: he had a brace on his leg, was walking up the stairs, tripped
at the same time Pearl stepped in front of him, and he fell into her.
Pearl also testified that, when they first separated, she lived in a crisis center
or women’s shelter because he was abusing her. On one occasion, he kicked her in
her leg. Hightower denied this as well and claimed that Pearl’s leg injuries were
caused by a car accident. On another occasion, he “smacked” their baby with the
door as he was coming into the room and then put his hands around her head and
pressed “like he was trying to crush [her] skull.”
–6– Pearl further testified that she was scared of Hightower and concerned for her
safety because he constantly parked outside of her house, drove by threatening her,
destroyed her property, and sent her pictures of the destroyed property. Craig
testified that she became concerned Hightower was stalking Pearl because he was
always watching her and reporting details of what he saw to Craig. Other evidence
also showed that Hightower was watching Pearl in the weeks leading up to the
hearing, including Hightower’s own admissions during cross-examination. He
testified he was just making sure she was served so that he did not have to worry
about his children leaving town and was checking on the children’s welfare.
Although Pearl admitted on cross-examination that she met Hightower on
occasion, sent him pictures of her and the children, and even asked if he could bring
them food, she maintained that she had been afraid of him the entire time and was
trying to get along with him for the sake of the children. The trial court was free to
believe Pearl’s testimony and disbelieve Hightower’s. See id.
Considering the evidence in the light most favorable to the trial court’s
finding, we conclude the evidence was legally sufficient to enable a reasonable and
fair-minded factfinder to find family violence had occurred and would likely occur
in the future. See id. at 827. And, even when the evidence is considered in a neutral
light, we cannot say the evidence in support of the family violence finding is so weak
as to make the finding clearly wrong and manifestly unjust. See Cain, 709 S.W.2d
at 176; see also In re Epperson, 213 S.W.3d 541, 544 (Tex. App.—Texarkana 2007,
–7– no pet.) (past violent conduct can be competent evidence that is legally and factually
sufficient to support a finding that family violence will likely occur in the future).
Therefore, we conclude the evidence is legally and factually sufficient and overrule
Hightower’s first issue.
Judicial Bias
In what we have discerned is Hightower’s second issue, he argues he “was
faced with prejudice and conflict of interest by the presiding judge” and that the
judge was required to recuse himself under Rule 18b(b) due to personal bias or
prejudice against Hightower as a result of prior dealings “that directly hurt” the
judge. See TEX. R. CIV. P. 18b(b)(2) (a judge must recuse in any proceeding in which
the judge has a personal bias or prejudice concerning the subject matter or a party).
A party must file a verified motion to seek the recusal of a judge who is presiding
over the party’s trial or hearing. TEX. R. CIV. P. 18a.
Hightower has not directed us to, nor have we found, a motion to recuse in the
record. Additionally, Hightower made no objection at the hearing or orally sought
to recuse the judge. Therefore, Hightower has waived his complaint for appellate
review. See TEX. R. APP. P. 33.1. We overrule Hightower’s second issue.
–8– Conclusion
We affirm the order of the trial court.
/Craig Smith/ CRAIG SMITH JUSTICE
200647F.P05
–9– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
JARELLE HIGHTOWER, Appellant On Appeal from the 59th Judicial District Court, Grayson County, No. 05-20-00647-CV V. Texas Trial Court Cause No. FA-17-0186. CHELSEA PEARL, Appellee Opinion delivered by Justice Smith. Justices Pedersen, III and Goldstein participating.
In accordance with this Court’s opinion of this date, the protective order of the trial court is AFFIRMED.
It is ORDERED that appellee CHELSEA PEARL recover her costs of this appeal from appellant JARELLE HIGHTOWER.
Judgment entered this 22nd day of March 2022.
–10–