AFFIRMED and Opinion Filed January 26, 2023
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-00919-CV
MARK MYERS, JR., Appellant V. VICTORIA REGAN, Appellee
On Appeal from the County Court at Law No. 2 Hunt County, Texas Trial Court Cause No. CC2100302
MEMORANDUM OPINION Before Justices Molberg, Reichek, and Breedlove Opinion by Justice Reichek Mark Myers, Jr. appeals the trial court’s protective order preventing him from
communicating or having contact with his wife, Victoria Regan, or their daughter,
H.B.M., for a period of two years except for court hearings or as authorized by court
order. In two issues, Myers contends the evidence was legally and factually
insufficient to show (1) family violence had occurred and (2) family violence was
likely to occur in the future. We affirm the trial court’s order. Background
On August 20, 2021, Regan signed an affidavit in support of an application
for a protective order against Myers. In the affidavit, Myers stated she feared for her
life and she believed Myers “could and would kill [her] if given another chance.”
Regan asserted that, on multiple occasions, Myers had threatened and/or assaulted
her including hitting her in the face, throwing things at her, and forcing her out of
the house.
The most recent incident occurred the day before she signed the affidavit.
According to Regan, on that occasion, Myers slammed her to the ground, dragged
her from the bedroom to the kitchen, and sat on her until she had a panic attack. The
trial court signed an ex parte temporary protective order on August 24 ordering
Myers to vacate the family residence and appear at a hearing on September 7.
Both Regan and Myers appeared at the hearing. Regan testified she and Myers
were married, but she was filing for a divorce. She also testified she and Myers had
one child together, H.B.M., who was eight months old. Regan stated that on August
19, she was working from home and taking care of H.B.M. She said Myers became
angry after he was awakened from a nap and he dragged her across the floor. H.B.M.
was in the room when this occurred. Myers then called the police and told them
Regan had a knife.
When the police arrived, Regan showed them surveillance video from a
security camera inside the house. Regan testified the video showed her being
–2– attacked by Myers and Myers was subsequently arrested. When asked whether she
believed family violence would occur again if a protective order was not granted,
Regan responded that she did.
Myers testified that Regan was the aggressor on August 19. According to
Myers, Regan attacked him while he was lying in bed with H.B.M. He stated she
hit him, slapped him, and dragged him out of the bed before throwing herself to the
ground. When Regan began throwing things, he moved her out of the bedroom into
the living room. At that point, Myers said, Regan ran to the kitchen and attempted
to get a knife out of a drawer. Myers stated he was able to slam the drawer shut and
sit on top of her while he called the police. He then locked himself in the bedroom
until police arrived. Myers said he explained to the police that Regan attacked him
outside the view of the camera, and that is why “all they saw on the cameras was me
trying to drag her out of the house.”
Myers also testified about an incident on May 23. He said that on that date,
Regan tried to run him over in their driveway. The police came and Myers showed
them security camera footage from outside the house. According to Myers, the
police gave him the option of arresting Regan for assault, but he “did not want to
proceed with that.”
After hearing the evidence, the trial court found there was evidence of a recent
act of family violence by Myers and a likelihood of future family violence. A final
–3– protective order protecting both Regan and H.B.M. was signed the same day. Myers
then brought this appeal.
Analysis
In his first issue, Myers challenges the legal and factual sufficiency of the
evidence to show that family violence occurred. Specifically, Myers contends there
was no evidence that H.B.M. was the victim of, or threatened with, family violence,
and no evidence that he dragged Regan across the room “in a violent way or caused
her fear of violence.”
We review the sufficiency of the evidence to support a family violence finding
using the traditional legal and factual sufficiency standards of review. Hightower v.
Pearl, No. 05-20-00647-CV, 2022 WL 842745, at *2 (Tex. App.—Dallas March 22,
2022, no pet.) (mem. op. on reh’g). In determining whether the evidence is legally
sufficient, 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
reviewing the factual sufficiency of the evidence, we may set aside the finding only
if, after considering all the evidence, it is so contrary to the overwhelming weight of
–4– the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176
(Tex. 1986).
To render a protective order, the trial court must hold a hearing and, at the
close of the hearing, find that family violence has occurred and is likely to occur in
the future. TEX. FAM. CODE ANN. § 85.001; Hightower, 2022 WL 842745, at *2. 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. Hightower, 2022 WL 842745, at *2. The
court may believe all, part, or none of a witness’s testimony and resolve any
inconsistencies. Id.
Under section 82.002 of the Texas Family Code, an adult member of a family
or household may file an application for a protective order to protect not only the
applicant, but also any other member of the applicant’s family or household. TEX.
FAM. CODE ANN. § 82.002(a). The code does not limit the persons who may be
protected to those who have already been victims. Dolgener v. Dolgener, 651
S.W.3d 242, 259–60 (Tex. App.—Houston [14th Dist.] 2021, no pet.). “This is
because an applicant’s family members may be at risk of suffering family violence
as a result of their relationship to the applicant, even though they have not yet
suffered harm.” Id. at 260. Regan was not required to show, therefore, that H.B.M
had been the victim of family violence to obtain an order protecting the child. See
id. (trial court may list child who is family member of victim as protected person
even if child did not directly suffer family violence).
–5– The family code defines family violence to include an act by a member of the
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. TEX.
FAM. CODE ANN. § 71.004(1).
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AFFIRMED and Opinion Filed January 26, 2023
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-00919-CV
MARK MYERS, JR., Appellant V. VICTORIA REGAN, Appellee
On Appeal from the County Court at Law No. 2 Hunt County, Texas Trial Court Cause No. CC2100302
MEMORANDUM OPINION Before Justices Molberg, Reichek, and Breedlove Opinion by Justice Reichek Mark Myers, Jr. appeals the trial court’s protective order preventing him from
communicating or having contact with his wife, Victoria Regan, or their daughter,
H.B.M., for a period of two years except for court hearings or as authorized by court
order. In two issues, Myers contends the evidence was legally and factually
insufficient to show (1) family violence had occurred and (2) family violence was
likely to occur in the future. We affirm the trial court’s order. Background
On August 20, 2021, Regan signed an affidavit in support of an application
for a protective order against Myers. In the affidavit, Myers stated she feared for her
life and she believed Myers “could and would kill [her] if given another chance.”
Regan asserted that, on multiple occasions, Myers had threatened and/or assaulted
her including hitting her in the face, throwing things at her, and forcing her out of
the house.
The most recent incident occurred the day before she signed the affidavit.
According to Regan, on that occasion, Myers slammed her to the ground, dragged
her from the bedroom to the kitchen, and sat on her until she had a panic attack. The
trial court signed an ex parte temporary protective order on August 24 ordering
Myers to vacate the family residence and appear at a hearing on September 7.
Both Regan and Myers appeared at the hearing. Regan testified she and Myers
were married, but she was filing for a divorce. She also testified she and Myers had
one child together, H.B.M., who was eight months old. Regan stated that on August
19, she was working from home and taking care of H.B.M. She said Myers became
angry after he was awakened from a nap and he dragged her across the floor. H.B.M.
was in the room when this occurred. Myers then called the police and told them
Regan had a knife.
When the police arrived, Regan showed them surveillance video from a
security camera inside the house. Regan testified the video showed her being
–2– attacked by Myers and Myers was subsequently arrested. When asked whether she
believed family violence would occur again if a protective order was not granted,
Regan responded that she did.
Myers testified that Regan was the aggressor on August 19. According to
Myers, Regan attacked him while he was lying in bed with H.B.M. He stated she
hit him, slapped him, and dragged him out of the bed before throwing herself to the
ground. When Regan began throwing things, he moved her out of the bedroom into
the living room. At that point, Myers said, Regan ran to the kitchen and attempted
to get a knife out of a drawer. Myers stated he was able to slam the drawer shut and
sit on top of her while he called the police. He then locked himself in the bedroom
until police arrived. Myers said he explained to the police that Regan attacked him
outside the view of the camera, and that is why “all they saw on the cameras was me
trying to drag her out of the house.”
Myers also testified about an incident on May 23. He said that on that date,
Regan tried to run him over in their driveway. The police came and Myers showed
them security camera footage from outside the house. According to Myers, the
police gave him the option of arresting Regan for assault, but he “did not want to
proceed with that.”
After hearing the evidence, the trial court found there was evidence of a recent
act of family violence by Myers and a likelihood of future family violence. A final
–3– protective order protecting both Regan and H.B.M. was signed the same day. Myers
then brought this appeal.
Analysis
In his first issue, Myers challenges the legal and factual sufficiency of the
evidence to show that family violence occurred. Specifically, Myers contends there
was no evidence that H.B.M. was the victim of, or threatened with, family violence,
and no evidence that he dragged Regan across the room “in a violent way or caused
her fear of violence.”
We review the sufficiency of the evidence to support a family violence finding
using the traditional legal and factual sufficiency standards of review. Hightower v.
Pearl, No. 05-20-00647-CV, 2022 WL 842745, at *2 (Tex. App.—Dallas March 22,
2022, no pet.) (mem. op. on reh’g). In determining whether the evidence is legally
sufficient, 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
reviewing the factual sufficiency of the evidence, we may set aside the finding only
if, after considering all the evidence, it is so contrary to the overwhelming weight of
–4– the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176
(Tex. 1986).
To render a protective order, the trial court must hold a hearing and, at the
close of the hearing, find that family violence has occurred and is likely to occur in
the future. TEX. FAM. CODE ANN. § 85.001; Hightower, 2022 WL 842745, at *2. 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. Hightower, 2022 WL 842745, at *2. The
court may believe all, part, or none of a witness’s testimony and resolve any
inconsistencies. Id.
Under section 82.002 of the Texas Family Code, an adult member of a family
or household may file an application for a protective order to protect not only the
applicant, but also any other member of the applicant’s family or household. TEX.
FAM. CODE ANN. § 82.002(a). The code does not limit the persons who may be
protected to those who have already been victims. Dolgener v. Dolgener, 651
S.W.3d 242, 259–60 (Tex. App.—Houston [14th Dist.] 2021, no pet.). “This is
because an applicant’s family members may be at risk of suffering family violence
as a result of their relationship to the applicant, even though they have not yet
suffered harm.” Id. at 260. Regan was not required to show, therefore, that H.B.M
had been the victim of family violence to obtain an order protecting the child. See
id. (trial court may list child who is family member of victim as protected person
even if child did not directly suffer family violence).
–5– The family code defines family violence to include an act by a member of the
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. TEX.
FAM. CODE ANN. § 71.004(1). Intentionally or knowingly causing physical contact
with another when the person knows or should reasonably believe the other will
regard the contact as offensive or provocative meets this statutory definition.
Dolgener, 651 S.W.3d at 256; see also TEX. PENAL CODE ANN. § 22.01(a)(3)
(defining “assault”). Courts broadly construe the family code’s protective order
provisions to effectuate its humanitarian and preventative purposes. Dolgener, 651
S.W.3d at 256.
Regan testified Myers dragged her across the floor after he became angry that
he was awakened from a nap. When asked whether this “attack” was captured on
videotape, Regan stated that it was. Myers himself admitted the security camera
footage showed him “trying to drag [Regan] out of the house.” The trial court was
free to determine that the act of dragging Regan across the floor after becoming
angry with her constituted an assault by Myers. See id. We conclude the evidence
is legally and factually sufficient to support the trial court’s finding that family
violence occurred. We resolve Myers’s first issue against him.
In his second issue, Myers contends the trial court erred in finding there was
a likelihood that family violence would occur in the future. Myers argues the single
act of violence discussed at the hearing was insufficient to establish a “past pattern
–6– of conduct” that would be predictive of future conduct. But evidence of multiple
instances of past violence is not necessary to support a finding that there is a
likelihood of future violence. See Williams v. Bowles, No. 01-13-00017-CV, 2014
WL 586236, at *4 (Tex. App.—Houston [1st Dist.] Feb. 13, 2014, no pet.) (mem.
op.); see also Maples v. Maples, 601 S.W.3d 23, 28 (Tex. App.—Tyler 2020, no
pet.) (pattern of family violence not necessary prerequisite to likelihood finding). In
cases involving family violence protective orders, one incident permits an inference
that the person will continue such behavior in the future. In re L.J.H., No. 05-21-
00183-CV, 2021 WL 4260769, at *17 (Tex. App.—Dallas Sept. 20, 2021, no pet.)
(mem. op.).
In this case, the testimony from both parties indicated they had an extremely
volatile relationship. The evidence showed the police had to be called on at least
two occasions, and Myers admitted to both dragging Regan across the floor and
sitting on top of her to restrain her. We conclude the evidence is legally and factually
sufficient to support the trial court’s finding that there was a likelihood of future
family violence. We resolve Myers’s second issue against him.
We affirm the trial court’s order.
/Amanda L. Reichek/ AMANDA L. REICHEK 210919F.P05 JUSTICE
–7– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
MARK MYERS, JR., Appellant On Appeal from the County Court at Law No. 2, Hunt County, Texas No. 05-21-00919-CV V. Trial Court Cause No. CC2100302. Opinion delivered by Justice VICTORIA REGAN, Appellee Reichek. Justices Molberg and Breedlove participating.
In accordance with this Court’s opinion of this date, the order of the trial court is AFFIRMED.
It is ORDERED that appellee VICTORIA REGAN recover her costs of this appeal from appellant MARK MYERS, JR.
Judgment entered January 26, 2023
–8–