ACCEPTED 15-25-00194-CV FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 1/1/2026 4:20 PM CHRISTOPHER A. PRINE CLERK IN THE FIFTEENTH COURT OF APPEALS OF TEXAS FILED IN AT AUSTIN 15th COURT OF APPEALS AUSTIN, TEXAS 1/1/2026 4:20:41 PM CHRISTOPHER A. PRINE Clerk NO. 15-25-00194-CV
MELISSA RAE DARVELL, Appellant-Applicant
v.
CAMERON HOOKER PUMPHREY, Appellee- Respondent
APPEAL FROM THE COUNTY COURT AT LAW THREE WILLIAMSON COUNTY
APPELLANT’S ORIGINAL BRIEF
GODDARD & HOING, P.C. By: /s/ Lisa Rasmussen Hoing Lisa Rasmussen Hoing 1801 Williams Drive Georgetown, Texas 78628 512.863.2813 (Tel) 512.582.8608 (Fax) TX SBN 24061028 Attorney for Appellant-Applicant TABLE OF CONTENTS
TABLE OF CONTENTS .......................................................................................... i
TABLE OF AUTHORITIES .................................................................................. iii
STATEMENT OF THE CASE .................................................................................1
ISSUES PRESENTED ..............................................................................................1
STATEMENT OF JURISDICTION .........................................................................2
STATEMENT OF FACTS........................................................................................2
Background and Parties ....................................................................................... 2
Procedural Posture ............................................................................................... 3
January 23, 2025 Protective Order Hearing ........................................................ 4
June 11, 2025 Protective Order Hearing ............................................................. 8
Testimony of Appellant ................................................................................... 10
Testimony of Child Protective Services Investigator ...................................... 12
July 2, 2025 Protective Order Hearing .............................................................. 13
Testimony of Appellee .................................................................................... 14
Testimony of Law Enforcement ...................................................................... 15
Testimony of Sexual Assault Nurse Examiner ................................................ 16
i Findings .............................................................................................................. 17
SUMMARY OF THE ARGUMENT ......................................................................18
ARGUMENT ..........................................................................................................21
I. THE TRIAL COURT MISAPPLIED CHAPTER 7B BY ELEVATING THE STATUTORY STANDARD AND IMPROPERLY RELYING ON A CRIMINAL GRAND JURY NO-BILL.............................................................. 21
Standard of Review and Statutory Framework ............................................... 21
Application to the Record ................................................................................ 22
II. THE TRIAL COURT VIOLATED APPELLANT’S RIGHT TO DUE PROCESS BY DENYING A MEANINGFUL OPPORTUNITY TO PRESENT EVIDENCE......................................................................................................... 25
Standard of Review .......................................................................................... 25
Applicable Law ................................................................................................ 25
Application to the Record ................................................................................ 26
REQUESTED RELIEF ...........................................................................................28
PRAYER .................................................................................................................29
ii TABLE OF AUTHORITIES
Cases
Bracey v. City of Killeen, 417 S.W.3d 94 (Tex. App.—Austin 2013, no pet.) ...... 21 Caldwell v. State ex rel. Zimmerman, No. 03-22-00464-CV, 2024 Tex. App. LEXIS 6208, at *15–16 (Tex. App.—Austin Aug. 23, 2024, pet. denied) ........ 22 Goldstein v. Sabatino, 690 S.W.3d 287 (Tex. 2024).............................................. 22 In re B.L.D., 113 S.W.3d 340 (Tex. 2003) ....................................................... 25, 28 In re J.F.C., 96 S.W.3d 256, 274 (Tex. 2002).................................................. 25, 28 In re K.M.L., 443 S.W.3d (Tex. 2014) ................................................................... 25 In re M.S., 115 S.W.3d 534 (Tex. 2003) .......................................................... 25, 28 In re Oates, 104 S.W.3d 571 (Tex. App.—El Paso 2003, no pet.) ........................ 21 Mathews v. Eldridge, 424 U.S. 319 (1976) ............................................................ 25 State v. Gonzalez, 82 S.W.3d 322 (Tex. 2002) ...................................................... 25 Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) .............................................. 21, 24
Statutes
Tex. Code Crim. Proc. art. 7B ......................................................................... passim Texas Gov't Code § 22.220 ...................................................................................... 5
iii STATEMENT OF THE CASE
This is an appeal from an order denying an application for a protective order
under §. The application sought protection based on allegations of sexual conduct
that qualified for protection under Chapter 7B of the Code of Criminal Procedure.
The trial court conducted hearings in Cause 25-0004-POC3 on January 23,
2025, June 11, 2025, and July 2, 2025, in the County Court at Law Number Three
of Williamson County, Texas before the Honorable Doug Arnold. Upon the close
of evidence, the trial court denied Appellant’s requested protective order.
ISSUES PRESENTED
1. Whether the trial court committed reversible legal error by misapplying Chapter
7B of the Texas Code of Criminal Procedure when it denied Appellant’s
application for protective order after elevating the statutory “reasonable
grounds to believe” standard beyond that required by law and improperly
weighing the burden of a criminal grand jury no-bill—contrary to controlling
authority dictating that criminal charging decisions do not govern or preclude
civil protective-order relief.
2. Whether the trial court violated Appellant’s right to due process by denying her
a meaningful opportunity to present evidence in support of her application for
protective order before making substantive rulings affecting child safety and
1 possession and access, despite Appellant’s repeated requests to proceed on the
evidentiary merits of her application.
STATEMENT OF JURISDICTION
This Court has jurisdiction over this appeal pursuant to Texas Government
Code § 22.220(a) because the appeal is taken from a final order of a county court
at law located within the Fifteenth Court of Appeals District. The trial court’s
order denying Appellant’s application for protective order is a final appealable
order and Appellant timely perfected this appeal in accordance with the Texas
Rules of Appellate Procedure.
STATEMENT OF FACTS
Background and Parties
On May 21, 2021, a final decree of divorce was entered upon the dissolution of
the marriage of Appellant and Appellee. CR 8-9, 19. The decree included a
parenting plan setting forth a standard possession order regarding J.A.P. and R.L.P.
CR 20-33. Appellant had the right of residency of the children. CR 24. After entry
of the decree, Appellee moved to Florida where he resided with his current wife,
Kardigan Pumphrey. RR 3:53; RR 4:8-9.
Appellee travelled from Florida to Texas to exercise his rights of possession
and access with J.A.P. and R.L.P. RR 4:10. Appellee exercised his visitation at the
2 Sleep Inn Hotel in Round Rock, Texas and the Comfort Inn Hotel in Pflugerville,
Texas. RR 4:10.
Prior to January 6, 2025, the parties and their respective spouses maintained a
cooperative co-parenting relationship. RR 3:51-52. They communicated through
group text messages, jointly participated in school and birthday events, and
coordinated travel and visitation. RR 3:51-53.
On January 6, 2025, J.A.P. made an outcry to Appellant about sexual abuse
during her bath. RR 3:53-54. During the bath, Appellant was explaining to J.A.P.
and R.L.P. that boys and girls having different types of “pee-pee’s.” RR 3:54.
J.A.P. was six years old and R.L.P. was four years old. CR 20. J.A.P. described
occurrences of sexual abuse at the hands Appellee. RR 3:54. Appellant reported
J.A.P.’s outcry to law enforcement and Child Protective Services. RR 3:61-62. On
January 9, 2025, Appellant, acting in a pro se capacity, filed an application for
protective order on behalf of J.A.P. and R.L.P. against Appellee. CR 8.
Procedural Posture
This appeal arises from the denial of an application for protective order filed by
Melissa Rae Darvell (hereinafter, “Appellant”) against Cameron Hooker Pumphrey
(hereinafter, “Appellee”) in the County Court at Law Number Three of Williamson
County, Texas on behalf of her children, J.A.P. and R.L.P.
3 January 23, 2025 Protective Order Hearing
On January 23, 2025, the trial court conducted a hearing on Appellant’s
application. RR 2:4. The trial court inquired whether there was a continuing
investigation of the outcry. RR 2:4. Appellant confirmed there was a criminal and
a Child Protective Services (hereinafter, “CPS”) investigation pending. RR 2:4.
The trial court advised Appellant, “So, typically, we let these investigations
play out before we proceed with a protective order because one could interfere
with the other. Does that make sense?” RR 2:4. Appellant advised the trial court
that CPS and the county attorney’s office advised her to go to the hearing for the
protective order because she could obtain relief sooner than waiting on the county
attorney’s office. RR 2:5. The trial court asked Appellant, “So, what evidence do
you have to support the allegations?” RR 2:5. Appellant advised a forensic
interview, a medical interview, and interviews with law enforcement and CPS had
occurred. RR 2:6. Appellant advised she had a drawing her child made and video
evidence that was not within her possession. RR 2:6. The trial court responded,
“So, you're not really prepared to go forward on the merits today, is that right?”
RR 2:6. Appellant attempted to respond. RR 2:6. The trial court asked whether
Appellee had been served. RR 2:6. Appellant responded there were two failed
attempts. RR 2:6. The trial court advised Appellant the hearing couldn’t go
forward unless Appellee had been served and questioned whether Appellant
4 wanted to “press forward at this time” in light of an ongoing investigation because
any evidence introduced at a protective order hearing could interfere with the
criminal investigation. RR 2:6. The trial court advised Appellant it is customary
for the protective order to issue after the investigation is complete. RR 2:7.
Appellant expressed concerns that Appellee still had possession and access rights
to J.A.P. and R.L.P. and she was frightened he could take them from school. RR
2:7. The trial court stated it couldn’t give Appellant legal advice, RR 2:7, but that
it did not want to “move forward” because it could interfere with the criminal
investigation. RR 2:8. Upon determining the county attorney had not “taken the
case up,” the trial court stated, “So, if they’re waiting, does that tell you something
about this case? That maybe it’s premature to go forward on the merits?” RR 2:8.
The trial court continued with the following exchange:
Court: So, we can just let this kind of sit until there’s movement on the criminal case or the county attorney picks it up.
Appellant: Okay.
Court: It won’t prejudice you in any way. It won’t hurt your chances in the long run.
Court: If you move forward and there’s not enough evidence, then I might have to deny it. That could be a problem.
Appellant: Okay. I do –
5 Court: See, in other words, the county attorney knows what evidence to present. They’re well-versed in all that. It sounds like you just have a few things here today. You’re not really fully ready to go with the full evidence.
Court: Because it hasn’t been developed yet. Does that make sense?
Appellant: Yes.
Court: So, perhaps what we should do is let this sit for the time being, let the criminal investigation, let CPS move forward, let the county attorneys decide if they’re going to pick it up, and then if there’s been an arrest, if the county attorneys have picked it up, you’ve got a lot more momentum.
Court: Does that make sense?
Appellant: Yes, Your Honor.
Court: So, we might just let it ride for now.
Appellant: Okay…
Court: … when there’s movement, meaning there’s been an arrest, or if the county attorneys pick it up, we’ll hear it from them.
Court: But it might be a little premature to go forward today. First of all, you haven’t served him, so I can’t really go forward.
Court: But even if you had, there are things that haven’t been developed yet.
6 Appellant: Okay.
Court: So, we’re not going to hear anything today. If you want to work on serving him, you can, but it sounds like these wheels just grind somewhat slowly, but it takes time for the investigation to get going and for things to play out.
Court: So, I’m not going to make any decision today either way.
Court: We’re going to let things happen with CPS and with law enforcement.
Court: Right?
Court: And if the county attorneys pick up it, then they’ll come see me, and we’ll get another setting.
Appellant: Okay. RR 2:8-11.
The trial court did not grant or deny Appellant’s Application for Protective
Order. RR 3:15.
On May 12, 2025, Appellant, represented by counsel, filed a first-amended
application for protective order requesting relief in the form of a temporary ex
7 parte order and a final protective order. CR 64-71. The trial court did not grant or
deny relief on Appellant’s May 12, 2025 request for a temporary ex parte order,
nor did it grant it. RR 3:15.
June 11, 2025 Protective Order Hearing
On June 11, 2025, the trial court conducted the second hearing on Appellant’s
application for protective order. RR 3:4. The trial court announced it was set for
Appellant’s Application for Protective Order and a hearing on Appellant’s petition
to modify.1 RR 3:4. Appellant requested that the trial court proceed on the
protective order first. RR 3:4. The trial court requested a proposed order from
Appellant. RR 3:4. Appellant advised the proposed order had been filed. RR 3:4.
The trial court refused to hear evidence unless it had a physical copy of the
proposed order. RR 3:5. The trial court advised it would take up Appellant’s
motion for temporary orders on the modification petition instead. RR 3:5.
During Appellant’s opening statement on the temporary orders, the trial court
questioned Appellant about evidence, and made findings concerning: 1) facts not
yet offered or received into evidence; 2) the number and identity of permissible
outcry witnesses; 3) the role and admissibility of testimony from the Williamson
County Children’s Advocacy Center (hereinafter, “CAC”); 4) CPS witnesses, and
1 Appellant had also filed a Petition for Modification of the parties’ 2021 Divorce Decree in Cause 21-0460-FC3.
8 5) the relevance of law-enforcement testimony, despite no objections raised and no
evidence offered or admitted. RR 3:7–10, 14–15.
Additionally, the trial court made several references to the grand jury and its
actions on the criminal case:
• “And that was the accusation that was no-billed by the grand jury?” RR 3:10.
• “You’re looking at this broader than what was presented with grand jury; is that what you’re saying?” RR 3:11.
• “Was there another charge involving the video that was presented to the grand jury?” RR 3:16.
• “Sure, but that wasn’t a discrete charge no-billed by the grand jury. That’s the point I was trying to make earlier.” RR 3:16.
• “Ok. So, I’ve got a case that was no-billed by a grand jury, presented to a grand jury and no-billed. Tell me why I shouldn’t allow him to have supervised access?” RR 3:23.
The trial court suggested the appointment of an amicus attorney and explained
how the appointment would assist the trial court prior to making a definitive ruling
regarding Appellee’s contact with the children. RR 3:18-19. The parties agreed to
the appointment of an amicus. RR 3:18-19.
Appellee requested interim visitation. RR 3:20. Appellant objected and
requested that the trial court allow her to present evidence before ruling on
Appellee’s request for interim possession and access. RR 3:23. After denying
Appellant the ability to offer evidence, the trial court ordered supervised contact
9 between Appellee and R.L.P. RR 3:23. Appellant renewed her request that the trial
court hear evidence prior to making its finding granting interim supervised
visitation of R.L.P. RR 3:25. The trial court denied Appellant’s request. RR 3:26.
Appellant renewed her request to adduce evidence. RR 3:27. The trial court denied
Appellant’s request. RR 3:27. Appellant renewed her request to adduce evidence.
RR 3:29. The trial court denied her request. RR 3:30.
Appellant requested that the trial court take up the protection order hearing. RR
3:38. The trial court asked Appellant, “Are you sure you want to go forward on
this now… the timing seems pretty significant here?” RR 3:40. Appellant advised
the trial court she desired to move forward with the protection order hearing. RR
3:40. The trial court characterized Appellant’s request for a lifetime protective
order as a de facto termination of parental rights. RR 3:45-46.
Testimony of Appellant
Appellant testified that on January 6, 2025, she was giving J.A.P. and R.L.P. a
bath while discussing the fact that boys and girls have different “pee-pees.” RR
3:50. J.A.P. was six years old and R.L.P. was four years old. RR 3:49. J.A.P.
announced she had seen a boy’s “pee-pee” because she slept in bed with her
daddy who didn’t wear undies. RR 3:53-55. J.A.P. told Appellant she touched
her daddy’s “pee-pee” on multiple occasions using her hands and her
feet, RR 3:55, and t h at h er d ad dy t old he r, “ T hat f eel s go o d. ” RR 3:56.
10 J.A.P. told Appellant her daddy played tickle monster with her wearing only a shirt
and no “undies.” RR 3:61. J.A.P. told Appellant she and her daddy watched videos
of people drinking milk out of “pee-pees” when they were in bed. RR 3:56. J.A.P.
said her daddy took her into the hotel bathroom, removed her pants and her
panties, rubbed her “pee-pee,” and told her it was their secret. RR 3:56.
J.A.P. told Appellant she watched videos of little boys and little girls
touching their daddy’s “ pee-pee” and drinking milk out of their daddy’s “pee-
pee” on the computer. RR 3:57-58. J.A.P. told Appellant her daddy told her he
wanted her to drink his “pee-pee” like they do in the videos. RR 3:59. J.A.P. told
Appellant her daddy touched her and she drank her daddy’s “pee-pee” in the
bathroom. RR 3:58. J.A.P. told Appellant that, if she didn’t do the “private stuff,”
her daddy would ground her from her toys and Nintendo Switch and
pointed to her vagina. RR 3:59, 70. J.A.P. told Appellant her daddy told her that
if she didn’t do it this time, she would have to do it next time. RR 3:59. J.A.P. told
Appellant her daddy would count back from five and ground her if she didn’t do
the “private stuff.” RR 3:59. J.A.P. told Appellant she watched a video of naked
“Kardi” drinking milk out of her daddy’s “pee-pee” while wearing a leash or chain
around her neck. RR 3:60. J.A.P. told Appellant she believes her daddy will do it
again. RR 3:61.
11 Testimony of Child Protective Services Investigator
Shirley Flowers (hereinafter, “Flowers”) testified she was the CPS investigator
assigned to J.A.P.’s case. RR 3:81. As part of her investigation, Flowers
interviewed J.A.P., Appellee, and Appellee’s wife, Kardigan Pumphrey. RR 3:82;
4:97. Flowers interviewed J.A.P. on January 7, 2025. RR 3:82. J.A.P. told Flowers
that when she sleeps in bed with her daddy her daddy has no panties on and she
can feel his pee-pee touching her. RR 3:84. J.A.P. told Flowers her daddy touched
her “pee-pee” and made her touch his “pee-pee.” RR 3:84. Flowers testified,
“[J.A.P.] had seen a video of him and his wife doing adult activities where the wife
wears an adult leash on - sucking milk from her peepee - from his peepee.” RR
3:84. J.A.P. told Flowers that, while she was in the bathroom, her daddy pulled her
pants down and asked her to drink milk from his peepee. RR 3:84. Later, during
Flowers’ direct examination, Flowers testified J.A.P. told her that her daddy made
her drink milk from his peepee. RR 3:87. J.A.P. told Flowers she told her daddy
she didn’t want to do it. RR 3:87. J.A.P. told Flowers R.L.P was present during the
events and “Kardi” was outside smoking or asleep. RR 3:82, 88, 99. J.A.P. drew
Flowers a picture of J.A.P.’s hand on her daddy’s penis. RR 3:82.
Flowers testified she interviewed Kardigan Pumphrey. 3:82; 4:97. Kardigan
Pumphrey confirmed the existence of the “dog collar and leash” sex video on hers
and her husband’s cell phones. RR 3:89, 96. Kardigan Pumphrey confirmed J.A.P.
12 would need the passcode to the phone to be able to see the video and that even if
J.A.P. were able to get through the passcode, she would still have to know where
to look for the sex video. RR 3:97. Kardigan Pumphrey told Flowers Appellee told
her J.A.P. walked in on him masturbating in the bathroom while he was watching
the video. RR 3:97. Kardigan Pumphrey told Flowers she travelled with Appellee
only when it was financially feasible. RR 3:100.
Flowers testified she interviewed Appellee. 3:82; 4:97. Appellee confirmed the
existence of the “dog collar and leash” sex video involving he and his wife. RR
3:89. Appellee told Flowers he may have been watching the video while J.A.P.
was laying on the bed. RR 3:89, 95-96. Appellee stated the “dog collar and leash”
sex video was on his phone. RR 3:89. Appellee said that, outside of watching the
video on the bed, he didn’t know how J.A.P. saw it. RR 3:96. Appellee confirmed
his phone was password protected. RR 3:96. Appellee told Flowers that Kardigan
Pumphrey is with him 99% of the time he travels to Texas to visit J.A.P. and
R.L.P. RR 3:100.
The trial court recessed the hearing and continued it to July 2, 2025. RR 3:100-
103.
July 2, 2025 Protective Order Hearing
On July 2, 2025, the Court conducted the continued hearing on Appellant’s
application for protective order. RR 4:4-120.
13 Testimony of Appellee
Appellee testified he was granted standard possession and access of J.A.P. and
R.L.P. after his divorce from Appellant. RR 4:9. Appellee testified he moved to
Florida and came to Texas approximately every two weeks to exercise his
visitation with J.A.P. and R.L.P. in hotel rooms. RR 4:9, 28-29. Appellee
confirmed he stayed at the Sleep Inn hotel in Round Rock and the Comfort Inn
hotel in Pflugerville, Texas. RR 4:10. Appellee identified Petitioner’s Exhibits 1,
2, and 3 as being an accurate depiction of the hotel room where he stayed with
J.A.P. and R.L.P. in 2024. RR 4:13-14.
Appellee confirmed he was in possession of a sex video where Kardigan
Pumphrey was giving him oral sex while wearing a dog collar and leash. RR 4:15-
16, 21-22. Appellee testified that, after J.A.P. and R.L.P. were asleep, he went into
the bathroom to take a shower. RR 4:34. Appellee confirmed he was alone with
J.A.P. and R.L.P. in the hotel room. RR 4:34. Appellee testified he was
masturbating in the hotel bathroom to the “dog collar and leash” video when J.A.P.
opened the door. RR 4:34. Appellee testified he believed J.A.P. must have seen the
dog collar and leash video through the reflection in the bathroom mirror. RR 4:23.
Appellee admitted he enjoyed engaging in risky sexual behavior. RR 4:26.
Appellee testified J.A.P. had grabbed his penis when she was younger but denied
any sexual intent or encouragement. RR 4:24. Appellee testified he was arrested on
14 the criminal case related to this protective order application and an emergency
protective order was in place for ninety days. RR 4:35-36. Appellee testified that
after criminal case was “no-billed,” he drove to Texas several times to exercise
possession and access of J.A.P. and R.L.P. RR 4:36.
Testimony of Law Enforcement
Detective Limary Cardella (hereinafter, “Cardella”) testified she was an Austin
Police Department detective assigned to the criminal case. RR 4:58. Cardella
interviewed Appellee in January of 2025. RR 4:58-59. Appellee told Cardella he
was in good standing with his Appellant. RR 4:59. Appellee told Cardella he was
at a hotel room in Round Rock, Texas when J.A.P. walked in on him masturbating
while sitting on the toilet watching a sex video of he and his current wife. RR 4:59-
60. Appellee told Cardella he believed J.A.P. saw the sex video through the mirror
when she came in the bathroom. RR 4:60.
Officer Sean Randolph (hereinafter, “Randolph”) testified he was a Round
Rock Police Department detective assigned to the criminal case. RR 4:39.
Randolph set up the appointment for a forensic interview of J.A.P. with the CAC.
RR 4:40. Randolph testified he investigated the hotels where Appellee, J.A.P., and
R.L.P. stayed in 2024. RR 4:40-41. Randolph testified Petitioner’s Exhibits 1, 2,
and 3 were an accurate depiction of the hotel room he inspected. RR 4:42.
Randolph testified he was suspicious of Appellee’s explanation “[b]ecause where
15 the toilet was placed and where the mirror was located, it was almost impossible. I
actually sat down on the toilet myself and played a video on my phone just to see.
It was almost impossible for anybody, even a six-year-old small child, to see a
video in a phone if you’re sitting down on the toilet watching it or seeing it in the
mirror.” RR 4:43.
Testimony of Sexual Assault Nurse Examiner
Erin Miller (hereinafter, “Miller”) testified she was a licensed and certified
forensic nurse practitioner employed with the Williamson County Children’s
Advocacy Center. RR 4:66. Miller testified she performed a medical exam on
J.A.P. on January 14, 2025. RR 4:68. Miller testified J.A.P. was in good health and
developmentally appropriate. RR 4:68. Miller testified she and J.A.P. were alone
during the examination. RR 4:68. J.A.P. told Miller she had seen her dad’s “pee-
pee,” his “private part,” before. 4:70. J.A.P said she and her dad were at a hotel and
she touched it with her hand. RR 4:70. J.A.P. demonstrated a gripping motion with
her hand to explain to Miller how she touched her dad’s penis under his clothes.
RR 4:70. J.A.P. told Miller her dad’s shirt was on, but that he took off his
underwear. RR 4:70. J.A.P. told Miller her dad said, “That feels good” when she
touched his “pee-pee” with her hand. RR 4:70. J.A.P. said her dad showed her
videos of adults and kids doing things with private parts different than what they
did. RR 4:70. Miller testified J.A.P. told her about a time she and her dad were in a
16 hotel and he sat down on the toilet with the lid closed, took her pants off, and told
her it was a secret and she couldn't tell anyone. RR 4:70. J.A.P. said she told him
she didn’t want to do that and he said, “okay” and put her pants back on. RR 4:70.
Miller testified J.A.P.’s behavior was consistent with children who have
suffered abuse. RR 4:70. Miller testified J.A.P. was very detailed in her answers.
Miller testified that J.A.P. requested a piece of paper during the exam and drew
pictures as she talked to Miller about what occurred. RR 4:70. J.A.P. told Miller
she and her dad were on the bed and drew a picture of the bed. RR 4:70-71 J.A.P.
drew Miller a picture of a toilet and demonstrated that the lid was closed. RR 4:71.
J.A.P. drew Miller a picture of videos she watched with her dad that depicted
adults and children doing things with “private parts.” RR 4:71. Miller testified
J.A.P.’s demeanor was very matter of fact during the examination and an
appropriate demeanor for a six-year-old who is just telling the story of exactly
what happened. RR 4:71.
Findings
The trial made a statement that it found the law enforcement and medical
witnesses to be credible. RR 4:108.
The trial court determined that “reasonable grounds to believe” should be
analogized to “preponderance of the evidence” as the burden standard for a
17 protective order under Tex. Code of Crim. Proc. art. 7B. RR 4:97 (hereinafter,
“Chapter 7B”).
The trial court denied Appellant’s Application for Protective Order and made
findings there were no reasonable grounds to believe Appellee committed family
violence, dating violence, or child abuse, or one of more of the following offenses
against either of the applicants: sexual assault or abuse, indecent assault, indecency
with a child, stalking, or trafficking, or any other ground necessary for the granting
of a protective order under Tex. Code of Crim. Proc. art. 7B.003. CR 198-201; RR
4:115.
The trial court reasoned that, because the grand jury’s no-bill was for the
criminal offense of Indecency with a Child, the court could not logically find
reasonable grounds to believe the offense of Indecency with a Child occurred by a
preponderance of the evidence because the grand jury’s burden of probable cause
was a lower burden than preponderance of the evidence. RR 4:103-115.
SUMMARY OF THE ARGUMENT
This appeal arises from the trial court’s denial of Appellant’s application for a
protective order under Tex. Code Crim. Proc. art. 7B (hereinafter, “Chapter 7B”).
18 The trial court’s denial rests on legal error and denial of due process, an abuse of
discretion—and each of which independently requires reversal.
First, the record demonstrates the trial court misapplied Chapter 7B by (a)
elevating the statutory “reasonable grounds to believe” standard beyond that
required by law, and (b) improperly weighing the existence of a collateral criminal
grand jury no-bill in its civil protective order analysis. Chapter 7B establishes a
protective framework intended to prevent future harm, not to adjudicate criminal
guilt. Nevertheless, the trial court concluded an extra-judicial factfinder’s decision
not to return a criminal indictment led the trial court to decline to apply it from
finding reasonable grounds to believe the offense of Indecency with a Child
occurred. That reasoning conflicts with controlling authority recognizing that
criminal charging decisions do not govern or preclude civil protective order relief
and reflects a fundamental misapplication of the governing statute.
Second, the trial court violated Appellant’s right to due process by denying her
a meaningful opportunity to present evidence in support of her application before
making substantive rulings affecting child safety, possession, and access. The
record reflects Appellant repeatedly requested to proceed on the evidentiary merits
of her protective order application. The trial court denied or ignored those requests
19 and instead entered interim rulings and findings, sua sponte, on substantive issues
directly affecting the safety of the children.
The record reflects a consistent pattern in which the trial court declined to
exercise its statutory responsibility to decide Appellant’s application for protective
relief on the evidence before it. At the initial hearing—when Appellant appeared
pro se—the court advised Appellant the matter should await criminal
developments and assured her that delaying a merits determination would not
prejudice her request. RR 2:4, 6–11. The same reluctance persisted in subsequent
hearings, where the court repeatedly emphasized external considerations, including
criminal proceedings and the involvement of an amicus attorney, rather than
adjudicating the application under Chapter 7B. RR 3:10–11, 16, 18–19, 23; RR
4:103–115. The trial court’s characterization of a lifetime protective order as a “de
facto termination” further underscores its resistance to applying the statutory
framework as written. RR 3:45–46.
Chapter 7B does not authorize a trial court to defer or outsource its obligation
to determine whether reasonable grounds exist. Because the trial court applied the
wrong legal standard, denied Appellant a meaningful opportunity to present
evidence, and reached a conclusion unsupported by the evidentiary record, the
20 order denying the application for a protective order should be reversed and the case
remanded for further proceedings consistent with Chapter 7B.
ARGUMENT
I. THE TRIAL COURT MISAPPLIED CHAPTER 7B BY ELEVATING THE STATUTORY STANDARD AND IMPROPERLY RELYING ON A CRIMINAL GRAND JURY NO-BILL
Standard of Review and Statutory Framework
Statutory interpretation presents a question of law reviewed de novo. Bracey v.
City of Killeen, 417 S.W.3d 94, 103 (Tex. App.—Austin 2013, no pet.). A trial
court has no discretion in determining what the law is or in applying the law to the
facts; when a court misinterprets or misapplies governing law, it abuses its
discretion. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992); In re Oates, 104
S.W.3d 571, 575 (Tex. App.—El Paso 2003, no pet.).
Chapter 7B governs applications for protective orders arising from certain
criminal offenses, including indecency with a child under Texas Penal Code
section 21.11. Tex. Code Crim. Proc. art. 7B.001. The statute requires a trial court
to grant a protective order if it determines there are reasonable grounds to believe
the respondent committed one of the enumerated offenses. Tex. Code Crim. Proc.
art. 7B.003.
21 Chapter 7B protective order proceedings are civil in nature. Caldwell v. State ex
rel. Zimmerman, No. 03-22-00464-CV, 2024 Tex. App. LEXIS 6208, at *15–16
(Tex. App.—Austin Aug. 23, 2024, pet. denied), cert. denied, 2025 U.S. LEXIS
4101 (2025). Although Chapter 7B authorizes protective relief based on conduct
that would qualify as a Penal Code offense, such proceedings are not prosecutions
for the underlying offense. Id.; see also Goldstein v. Sabatino, 690 S.W.3d 287,
291–92 (Tex. 2024). The purpose of a Chapter 7B protective order is not punitive,
but protective—designed to prevent future harm to the applicant and members of
the applicant’s family or household. Tex. Code Crim. Proc. art. 7B.005(a)(1).
Accordingly, Chapter 7B requires a trial court to apply the statutory “reasonable
grounds to believe” standard—distinct from criminal charging standards—and to
grant protective relief when that standard is satisfied.
Application to the Record
The trial court elevated the statutory standard and misapplied Chapter 7B. The
record demonstrates the trial court did not apply the statutory “reasonable grounds
to believe” standard required by Chapter 7B. Instead, the court repeatedly treated
the existence and outcome of a criminal grand jury proceeding as a controlling
benchmark, importing a criminal charging framework into a civil protective order
determination.
22 At the June 11, 2025 hearing, the trial court repeatedly referenced the grand
jury’s no-bill while addressing whether protective relief was appropriate. The trial
court asked, “And that was the accusation that was no-billed by the grand jury?”
RR 3:10. It then stated, “You’re looking at this broader than what was presented
with grand jury; is that what you’re saying?” RR 3:11. The trial court returned to
the same theme by asking, “Was there another charge involving the video that was
presented to the grand jury?” RR 3:16. Later, the trial court framed its analysis by
stating, “Ok. So, I’ve got a case that was no-billed by a grand jury… Tell me why I
shouldn’t allow him to have supervised access?” RR 3:23; RR 4:103–115.
This criminal law lens was evident from the outset. At the January 23, 2025
hearing, the trial court advised Appellant, “So, typically, we let these
investigations play out before we proceed with a protective order because one
could interfere with the other.” RR 2:4. The trial court suggested the matter was
“premature to go forward on the merits” based on the county attorney’s inaction
and repeatedly stated it did not want to “move forward” because doing so could
interfere with the criminal investigation. RR 2:6–8. These statements reflect that
the trial court conditioned its Chapter 7B analysis on the status of the criminal case
rather than determining whether reasonable grounds to believe existed under the
statute.
23 When the matter returned on June 11, 2025, Appellant requested that the trial
court proceed on her application for protective relief. RR 3:40. Rather than
applying the statutory standard, the court questioned the timing of the request and
raised concerns about the consequences of granting protective relief. RR 3:40–41,
45–46. In the same exchange, the court discussed appointing an amicus attorney
and characterized Appellant’s request for a lifetime protective order as a “de facto
termination of parental rights.” RR 3:45–46. These considerations also fall outside
the statutory framework governing Chapter 7B relief.
From the initial hearing through the July 2, 2025 proceedings, the trial court
systematically substituted criminal charging outcomes and collateral
considerations for the statutory inquiry mandated by Chapter 7B. By elevating the
evidentiary threshold beyond “reasonable grounds to believe” and treating a
criminal no-bill as dispositive, the court applied an incorrect legal standard.
A trial court abuses its discretion when it misinterprets or misapplies governing
law. Walker, 827 S.W.2d at 839. Because the trial court misapplied Chapter 7B, its
denial of Appellant’s application constitutes an abuse of discretion. The order must
therefore be reversed and the cause remanded for application of the correct
statutory standard.
24 II. THE TRIAL COURT VIOLATED APPELLANT’S RIGHT TO DUE PROCESS BY DENYING A MEANINGFUL OPPORTUNITY TO PRESENT EVIDENCE
Standard of Review
Whether a trial court afforded a party due process presents a question of law
reviewed de novo. State v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002); In re
K.M.L., 443 S.W.3d 101, 112 (Tex. 2014).
Applicable Law
Due process requires, at a minimum, notice and a meaningful opportunity to be
heard at a meaningful time and in a meaningful manner. Mathews v. Eldridge, 424
U.S. 319, 333 (1976); In re B.L.D., 113 S.W.3d 340, 352 (Tex. 2003).
A trial court violates due process when it prevents a party from presenting
evidence material to the issues before the court. In re J.F.C., 96 S.W.3d 256, 274
(Tex. 2002); In re M.S., 115 S.W.3d 534, 549 (Tex. 2003).
A litigant must be afforded a fair opportunity to develop and present evidence
before the court renders substantive rulings affecting that party’s rights. In re
K.M.L., 443 S.W.3d at 112.
25 Application to the Record
The record reflects the trial court did not afford Appellant a meaningful
opportunity to present evidence in support of her application for protective relief.
During Appellant’s hearing on January 23, 2025, the trial court discouraged
presentation of evidence and declined to reach the merits of the application,
advising it did not want to “hear anything today” and that it was “not going to
make any decision today either way.” RR 2:8–11. The trial court neither granted
nor denied Appellant’s application, nor did it provide a setting for a merits hearing.
RR 3:15.
At Appellant’s hearing on June 11, 2025, the trial court announced it had two
matters before it concerning Appellant – a motion for further temporary orders on
a petition to modify and a protective order application. RR 3:4. Appellant
requested that the trial court take up the protective order application first. RR 3:4.
The trial court declined to do so because it did not have a physical copy of
Appellant’s proposed order and stated it would not hear evidence without one; RR
3:4-5, as a result, the trial court proceeded on temporary orders. RR 3:5. During
Appellant’s opening statement—the trial court made findings concerning evidence
not yet offered, determined the number and identity of permissible outcry
witnesses, assessed the relevance of law-enforcement testimony, and addressed the
grand jury’s actions, all before hearing any evidence. RR 3:7–11, 14–16.
26 The record reflects that throughout the second and third hearings, the trial court
continued to defer a merits determination on the protective order while addressing
collateral considerations and making substantive rulings affecting the parties and
the child. RR 3:18–19, 23, 25–30. When Appellee requested interim visitation,
Appellant repeatedly requested permission to present evidence before the trial
court ruled on Appellee’s request. RR 3:23, 25, 27, 29. Each request Appellant
made was denied. RR 3:23, 26, 27, 30.
It is evident from the record that Appellant was not afforded a fair opportunity
to develop and present the evidence material to the Chapter 7B application prior to
the court ruling that Appellee would have contact with R.L.P. RR 3:23. After the
trial Court granted Appellee’s request for possession and access with R.L.P.,
Appellant renewed her request to proceed on her application for protective order.
RR 3:40. The trial court continued to resist reaching a merits determination and
asked, “Are you sure you want to go forward on this now… the timing seems
pretty significant here.” RR 3:40. The trial court continued to raise concerns about
the timing on Appellant’s request and the burden on Appellee of granting
Appellant’s requested protective relief. RR 3:42-46.
When a trial court’s actions prevent the development of the evidentiary record
on a claim, the reviewing court cannot assess the effect of the excluded evidence.
27 In re M.S., 115 S.W.3d 534, 549 (Tex. 2003); In re K.M.L., 443 S.W.3d 101, 119
(Tex. 2014). In such circumstances, the denial of the opportunity to present
evidence constitutes reversible error. In re M.S., 115 S.W.3d at 549; In re K.M.L.,
443 S.W.3d at 119.
Because the trial court denied Appellant a meaningful opportunity to present
evidence in support of her application for protective relief before rendering
substantive rulings affecting child safety and possession and access, the
proceedings failed to comport with due process. In re B.L.D., 113 S.W.3d at 352;
In re J.F.C., 96 S.W.3d at 274. Reversal is required.
REQUESTED RELIEF
Because the trial court applied an incorrect legal standard in denying
Appellant’s application for protective relief under Chapter 7B and conducted the
proceedings in a manner inconsistent with due process, the order denying the
application cannot stand. Appellant respectfully requests that this Court reverse the
trial court’s order denying the application for protective order and remand the
cause to the trial court for further proceedings consistent with this Court’s opinion
and the governing statutory and constitutional requirements.
Appellant requests all further relief to which she may be justly entitled.
28 PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant respectfully prays
that this Court reverse the trial court’s order denying Appellant’s application for
protective order and remand this cause to the trial court for further proceedings
consistent with this Court’s opinion and applicable law, and for such other and
further relief to which Appellant may be justly entitled.
29 CERTIFICATE OF SERVICE
I, Lisa Rasmussen Hoing, hereby certify that on this the 1st day of January, 2026, this Original Brief of Appellant was served via ECF to:
Jaynie N. Badgett Counsel for Appellee-Respondent
GODDARD & HOING, P.C.
By: /s/ Lisa Rasmussen Hoing Attorney for Appellant-Applicant
CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I certify that this Original Appellant’s Brief complies with the applicable word limit. According to the word-count function of Microsoft Word, the brief contains 15,000 words, excluding the portions of the brief exempted by Texas Rule of Appellate Procedure 9.4(i)(1).
By: /s/ Lisa Rasmussen Hoing Attorney for Appellant-Applicant
30 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.
Envelope ID: 109590474 Filing Code Description: Brief Not Requesting Oral Argument Filing Description: Appellant's Original Brief Status as of 1/2/2026 7:18 AM CST
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Jaynie Badgett 24093912 jaynie@coferconnelly.com 1/1/2026 4:20:41 PM NOT SENT
Lisa Hoing lrh@goddardhoing.com 1/1/2026 4:20:41 PM NOT SENT