Samuel Peter Vives v. Amanda Lee Gersten

• Court: Court of Appeals of Texas
• Decided: December 30, 2014
• Docket: 05-13-01463-CV
• Status: Published

Opinion

Affirmed as Modified; Opinion Filed December 29, 2014.

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-13-01463-CV

SAMUEL PETER VIVES, Appellant V. AMANDA LEE GERSTEN, Appellee

On Appeal from the 292nd Judicial District Court Dallas County, Texas Trial Court Cause No. CV13-00303-V-292ND

MEMORANDUM OPINION Before Justices O'Neill, Francis, and Myers Opinion by Justice Myers Appellant, Samuel Peter Vives, challenges a protective order entered in favor of his

former girlfriend, Amanda Lee Gersten. In four issues, Vives challenges (1) the sufficiency of

the evidence that family violence occurred, (2) the sufficiency of the evidence that family

violence was likely to occur in the future, (3) the trial court’s award of protection to Gersten’s

family, and (4) the trial court’s failure to include the addresses he is prohibited from visiting.

Because all dispositive issues are settled in law, we issue this memorandum opinion. TEX. R.

APP. P. 47.2(a), 47.4. As modified, we affirm the trial court’s judgment.

On June 5, 2013, the Dallas County District Attorney’s Office filed an application for a

protective order against Vives on behalf of Gersten. A temporary ex parte protective order was

issued. On June 19, 2013, the court held a hearing on the application, entered a default judgment

against Vives, and granted the protective order. Vives moved to vacate the default judgment, which the trial court granted, and a second hearing was held on September 24, 2013. Gersten and

Vives, as well as their friends, testified at the hearing.

Gersten testified she and Vives were in a dating relationship “on and off” for five years.

The relationship ended in March 2013 because of the violence, and she felt Vives was “stalking”

her. Gersten claimed the violence began about a year into their relationship. During the second

year of their relationship, Vives struck Gersten in the eye while holding her cell phone in his

hand like “brass knuckles.” Gersten claimed she loved Vives and always forgave him after he hit

her. While on a business trip, Gersten noticed her cell phone camera turning on inexplicably. She

later learned that Vives hired someone to “tap her phone and email” so he would know where

she was and what she was doing.

Gersten and Vives both admitted that they included bondage activities in their sex life.

Gersten claimed that in the last year, and without her permission, Vives tied her to a pole in his

home, had very rough sex with her, and then spit in her face. She also reported another occasion

where Vives was very intoxicated during sex when he choked her and smothered her with a

pillow. Vives denied choking her but Gersten had bruises on her neck as evidence. Vives later

purchased make-up for Gersten to use to cover the bruises on her neck. Gersten testified she and

Vives had an erotic portrait taken, which Vives kept hanging in his bedroom. After their break-

up, Vives lit the portrait on fire and took a picture of it burning. Vives posted the burning erotic

photograph on Facebook, and he made it his main banner. Vives maintains a public profile and

anyone with a Facebook account could see the burning photograph.

The most recent attack occurred on March 24, 2013. Gersten stated she was trying to

leave his home when Vives bit her finger and drug her by her hair across the room. When she

made her way outside, Vives threw her against the staircase and she hit her head. Gersten then

–2– had an anxiety and asthma attack. Vives’ motorcycle was blocking the gate, and he would not

move it and allow Gersten to leave.

Gersten testified about taking Vives to see his probation officer. Vives told her he was on

probation for DWI. Gersten later learned Vives was actually on probation for aggravated assault;

Vives eventually told her he held a gun to his ex-girlfriend’s head.

After their break-up, Gersten reported having dinner with a friend after which, she

walked out of the restaurant and Vives was waiting for her outside. Vives would also show-up at

her home, unannounced.

Karen Hernandez testified she had been a friend of Gersten’s for twelve years. Hernandez

witnessed Gersten with black eyes and claimed Gersten reported multiple instances of violence

at the hand of Vives. Hernandez tried to convince Gersten to report the violence to the police, but

Gersten refused. Evidence of Gersten’s injuries was introduced through photographs taken by

Hernandez.

Vives acknowledged posting the burning photograph on Facebook after being served

with the temporary protective order. He said he did it because his current girlfriend did not like

the picture hanging in his house. Vives claims there was nothing wrong with how he “chose to

get rid of [his] property.”

Vives denied causing the injuries exhibited in the photographs of Gersten. However, he

admitted he and Gersten had several arguments during that period. He provided the court with a

copy of text messages, reportedly from Gersten, in which she tells him if he calls the police she

“can start to cry very quick and say you hit me up if you wanna play dirty . . . .” Vives knew

Gersten’s father was a minister and yet he left nude photos of Gersten in her parent’s front yard.

At the conclusion of the hearing, the trial court told the parties:

This case has several unusual twists, one of which is an admitted violation of my temporary protective order after it was entered by posting of the picture, an –3– open perjury statement by a witness and some unusual conduct by both the Applicant and the Respondent.

The family violence statutes have a hard time accommodating all of the circumstances that are set forth in this case, but the pictures and the testimony match to the extent that I’m going to find that family violence has occurred in the past and is likely to occur in the foreseeable future.

Vives filed his notice of appeal on October 23, 2013.

In Vives’ first two issues, he challenges the factual and legal sufficiency of the evidence

that (1) he possessed the requisite intent required to support a finding that family violence

occurred and (2) family violence was likely to occur in the future.

A legal sufficiency challenge to a family violence protective order may be sustained only

when “(1) the record discloses a complete absence of evidence of a vital fact; (2) the court is

barred by rules of law or of evidence from giving weight to the only evidence offered to prove a

vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the

evidence establishes conclusively the opposite of the vital fact.” In re F.K.M., No. 05-11-00276-

CV, 2012 WL 939271, *3 (Tex. App.—Dallas March 19, 2012, no pet.) (mem. op.) (citing

Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998)). We consider the

evidence in the light most favorable to the verdict and indulge every reasonable inference that it

would support. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). We must credit

favorable evidence if a reasonable fact-finder could and disregard contrary evidence unless a

reasonable fact-finder could not. Id. at 827. “The final test for legal sufficiency must always be

whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict

under review.” Id. at 827.

In reviewing a factual-sufficiency challenge, we weigh all of the evidence in the record.

Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996). We will overturn the finding only if it is so

contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong

–4– and manifestly unjust. Id. The fact-finder is the sole judge of the credibility of the witnesses and

the weight to be given to their testimony. GTE Mobilnet of S. Tex. Ltd. P’ship v. Pascouet, 61

S.W.3d 599, 615–16 (Tex. App.—Houston [14th Dist.] 2001, pet. denied). We will not substitute

our judgment for that of the trial court merely because we might reach a different conclusion. Id.

at 616.

A protective order issued under section 85.001 of the Texas Family Code may be granted

upon the finding that family violence has occurred and is likely to occur in the future. TEX. FAM.

CODE ANN. § 85.001 (West 2014). The definition of family violence includes “dating violence.”

ID. § 71.004. As defined:

(a) “Dating violence” means an act, other than a defensive measure to protect oneself, by an actor that: (1) is committed against a victim: (A) with whom the actor has or has had a dating relationship; or (B) because of the victim's marriage to or dating relationship with an individual with whom the actor is or has been in a dating relationship or marriage; and (2) is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the victim in fear of imminent physical harm, bodily injury, assault, or sexual assault.

ID. § 71.0021 (emphasis added).

Vives first challenges the trial court finding that family violence occurred which requires

the finding he intended the result of his alleged actions. See id. § 71.0021(a)(2). Vives contends

the record does not include any evidence of context or of indicators that could demonstrate he

intended the result of his actions.

Vives bases his argument for a lack of evidence regarding his intent on a single case,

Gonzalez v. Rangel. No. 13-05-0641-CV, 2006 WL 2371464 (Tex. App.—Corpus Christi Aug.

17, 2006, no pet.) (mem. op.). In Gonzalez, “[t]he trial court indicated that it found no evidence

of an overt physical act of family violence, and thus, the question is whether the evidence shows

that family violence in the form of threats occurred.” Id at *2. The Gonzalez opinion is a –5– thorough analysis of the sufficiency of the evidence to support the entry of a protective order

when the only conduct complained about was statements and threats made toward the applicant.

This case is distinguishable.

Here, there is evidence of overt physical acts. The record contains testimony and

photographs of injuries from more than one occasion. There is evidence Gersten received black

eyes and bruises on her neck from being choked, and testimony that she was dragged across the

room by her hair and smothered with a pillow—all at the hands of Vives. A reasonable and fair-

minded person could decide Vives intended to harm Gersten when he hit her in the eye, using a

cell phone like “brass knuckles.” Reviewing the evidence in the light most favorable to the

court’s findings and indulging every reasonable inference in support thereof, we conclude that

there was more than a scintilla of evidence supporting the trial court’s findings that family

violence has occurred. See In re F.K.M., 2012 WL 939271 at *3. Further, viewing the evidence

in a neutral light, we do not find the trial court’s findings were so contrary to the evidence as to

be clearly wrong or unjust. See Houchin v. Houchin, No. 07-12-00373-CV, 2013 WL 2467343,

*4 (Tex. App.—Amarillo May 31, 2013, no pet.) (mem. op.). Therefore, we conclude the

evidence is sufficient to support the trial court’s finding that family violence occurred and we

overrule Vives’ first issue.

Vives’ second issue challenges the sufficiency of the evidence to support the trial court

finding that family violence is “likely to occur in the future.” Vives contends a finding that

family violence occurred in the past is not enough to support the finding that family violence will

occur in the future. In cases involving family violence protective orders, evidence that a person

has engaged in abusive conduct in the past permits an inference that the person will continue this

behavior in the future. Teel v. Shifflett, 309 S.W.3d 597, 604 (Tex. App.—Houston [14th Dist.]

2010, pet. denied) (citing Banargent v. Brent, No. 14–05–00574–CV, 2006 WL 462268, at *1–2

–6– (Tex. App.—Houston [14th Dist.] Feb. 28, 2006, no pet.) (mem.op.)). “Oftentimes, past is

prologue; therefore, past violent conduct can be competent evidence which is legally and

factually sufficient to sustain the award of a protective order.” Id. (quoting In re Epperson, 213

S.W.3d 541, 544 (Tex. App.—Texarkana 2007, no pet.)).

In his brief, Vives contends he had “limited interactions” between himself and Gersten

after the temporary protective order was in place. But Vives testified that he posted the erotic

photograph of Gersten in flames on the Internet after he had been served with the temporary

protective order. While past violence does not mandate a finding of likely future violence, it can

support such a finding in some instances, such as here, where the testimony and evidence

showed a pattern of violent behavior and disregard for the temporary order. See Houchin, 2013

WL 2467343 at *4; Dalbosco v. Seibert, No. 14–11–00429–CV, 2012 WL 1795108, *7 (Tex.

App.—Houston [14th Dist.] May 17, 2012, pet. denied) (mem. op.). Reviewing the evidence of

Vives’ post-order actions in the light most favorable to the court’s findings and indulging every

reasonable inference in support thereof, we conclude that there was more than a scintilla of

evidence supporting the trial court’s findings that family violence is likely to occur in the future.

See Houchin, 2013 WL 2467343 at *4. Further, viewing the evidence in a neutral light, we do

not find the trial court’s findings were so contrary to the evidence as to be clearly wrong or

unjust. Id. Accordingly, Vives’ second issue challenging the sufficiency of the evidence is

overruled.

In his third issue, Vives challenges the trial court’s award of protection to Gersten’s

family when her application only requested protection for herself. Specifically, Vives argues the

protective order violates rule 301 of the Texas Rules of Civil Procedure by granting more relief

than Gersten requested. Gersten contends Vives failed to preserve this complaint. However,

Vives’ motion for new trial specifically states, “Gersten’s Application for Protective Order does

–7– not include any references to any member of her family or household. Instead, the only relief

sought is for Gersten herself.” Therefore, we will address Vives’ third issue.

Texas Family Code section 85.022 specifically authorizes a trial court to prohibit a

person who is found to have committed family violence from “going to or near the residence or

place of employment or business; of a person protected by an order or a member of the family or

household of a person protected by an order.” TEX. FAM. CODE ANN. § 85.022(b)(3) (West

2014). Because the trial court was authorized by statute to add these conditions to Vives’

protective order, we overrule Vives’ third issue. Id.; see also Maki v. Anderson, 2013 WL

4121229, No. 02-12-00513-CV, *6 (Tex. App.—Fort Worth Aug. 15, 2013, pet. denied) (mem.

op.).

In Vives’ fourth issue, he claims the protective order exceeds the allowable protections

authorized in the family code. Specifically, Vives argues the trial court erred because nothing in

the record indicates Gersten requested her employment address remain confidential, yet the

protective order states that Vives is prohibited from:

5) Going to or within 500 feet of the employment or business of AMANDA LEE GERSTEN or a member of the family or household of AMANDA LEE GERSTEN, to wit: any confidential employment address in Dallas County, TX

(emphasis added). Gersten concedes there is no written or oral request for confidentiality

contained within the appellate record. Further, the temporary protective orders issued during the

pendency of this case included an employment address. We conclude the trial court erred by

finding the employment address to remain confidential, and we sustain Vives’ fourth issue.

This Court has the power to correct and modify the trial court’s judgment to make the

record speak the truth when it has the necessary data and information to do so. See TEX. R. APP.

P. 43.2(b). Accordingly, we modify the fifth provision of the protective order to read as follows:

–8– “5) Going to or within 500 feet of the employment or business of AMANDA LEE GERSTEN or a member of the family or household of AMANDA LEE GERSTEN, to wit: 5701 Virginia Parkway, McKinney, TX 75071.”

We affirm the trial court’s judgment as modified. We ORDER the trial court to enter a

corrected protective order reflecting this modification.

/Lana Myers/ 131463F.P05 LANA MYERS JUSTICE

–9– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

SAMUEL PETER VIVES, Appellant On Appeal from the 292nd Judicial District Court, Dallas County, Texas No. 05-13-01463-CV V. Trial Court Cause No. CV13-00303-V- 292nd. AMANDA LEE GERSTEN, Appellee Opinion delivered by Justice Myers. Justices O’Neill and Francis participating.

In accordance with this Court’s opinion of this date, the September 24, 2013 Protective Order of the trial court is MODIFIED as follows:

“5) Going to or within 500 feet of the employment or business of AMANDA LEE GERSTEN or a member of the family or household of AMANDA LEE GERSTEN, to wit: 5701 Virginia Parkway, McKinney, TX 75071.”

We AFFIRM the trial court’s judgment as MODIFIED. We ORDER the trial court to enter a corrected protective order reflecting this modification.

It is ORDERED that appellee AMANDA LEE GERSTEN recover her costs of this appeal from appellant SAMUEL PETER VIVES.

Judgment entered this 29th day of December, 2014.

–10–