Opinion
No. 04-17-00113-CV
04-18-2018
Vick NICKELSON, Appellant v. The STATE of Texas for the Protection of Lara Nickelson, Appellee
MEMORANDUM OPINION
From the 225th Judicial District Court, Bexar County, Texas
Trial Court No. 2016-CI-12351
The Honorable Stephani A. Walsh, Judge Presiding Opinion by: Rebeca C. Martinez, Justice Sitting: Karen Angelini, Justice Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice AFFIRMED
Appellant, Vick Nickelson, appeals a protective order granted by the trial court claiming the evidence is legally insufficient to support the court's finding that family violence was likely to occur in the future. We affirm the trial court's order granting the final protective order.
BACKGROUND
On July 25, 2016, Lara Nickelson filed an application for a protective order against her husband Vick Nickelson which was supported by her affidavit alleging family violence. The next day, July 26, 2016, a temporary ex parte protective order was granted. On the same day, Lara filed a petition for divorce in a different proceeding. Following several resets and extensions of the temporary protective order, an evidentiary hearing was held on the application. The trial court signed a final protective order on December 1, 2016.
At the hearing on the final protective order, Lara testified about her relationship with Nickelson and about his past violent behavior. Lara and Nickelson had been married for twenty years. At the time of the hearing, they were separated and had not lived together for approximately two years. Lara testified that Nickelson resided in Port Aransas a majority of the time, but still came and went from the marital home as he pleased. In testifying to Nickelson's violent behavior, Lara described episodes and physical assaults occurring in 2013, 2014, 2015, and 2016. The last assault, which prompted her application for protective order, occurred on June 25, 2016. Lara estimated that the last in-person verbal contact between her and Nickelson occurred on June 26, 2016, the day after the June 25th incident. However, Lara testified that Nickelson had sent her about fifty text messages since that day, several of which contained threats against her life. Lara also testified that Nickelson had threatened to kill her several times over the course of their marriage and that she believed he is capable of carrying out the threats.
Nickelson's psychologist, Dr. Anna Marie Hernandez, also testified at the hearing regarding her overall impression of Nickelson. Dr. Hernandez testified that Nickelson was remorseful and acknowledged his difficulty coping with anger, and that, in her opinion, any concern for future interaction between Nickelson and Lara was low. Lara's psychologist, Dr. Dina Trevino, also testified. On examination by the court, Dr. Trevino stated that although she does not know Nickelson personally, she was concerned by Nickelson's pattern of violence because that sort of pattern was "something someone continued to do."
Following the conclusion of the hearing, "having weighed the relevant factors and [having] considered the best interest of the family," the trial court granted a one-year protective order, concluding that Nickelson "has committed family violence and [that] family violence is likely to occur in the future." Following a request from Nickelson, the trial court issued findings of fact and conclusions of law. This appeal followed.
MOOTNESS
The final protective order was granted on December 1, 2016 for a period of one year. It therefore expired according to its terms on December 1, 2017. Because the protective order has expired, we must address whether the expiration of the protective order has rendered this appeal moot. See Black v. Jackson, 82 S.W.3d 44, 51-52 (Tex. App.—Tyler 2002, no pet.) ("Once a case or claim is determined to be moot, a court lacks subject matter jurisdiction to decide the issues."). Under the mootness doctrine, "[t]he general rule is that a case becomes moot, and thus unreviewable, when it appears that a party seeks to obtain relief on some alleged controversy when in reality none exists." Schaban-Maurer v. Maurer-Schaban, 238 S.W.3d 815, 822 (Tex. App.—Fort Worth 2007, no pet.). However, Texas law does recognize the collateral consequences exception to the mootness doctrine, which will apply when prejudicial events have occurred whose effects continued to stigmatize individuals long after the judgment has ceased to operate. Gen. Land Office v. OXY U.S.A., Inc., 789 S.W.2d 569, 571 (Tex. 1990).
Nothing in the record before us shows the protective order was extended beyond December 1, 2017.
Protective orders that are granted based upon a finding of family violence, although expired, typically fall within the collateral consequences exception because of the long-lasting social stigma attached to them. See James v. Hubbard, 21 S.W.3d 558, 560 (Tex. App.—San Antonio 2000, no pet.) (stating protective orders based on family violence carry "significant stigma in our society"); see also Clements v. Haskovec, 251 S.W.3d 79, 84 (Tex. App.—Corpus Christi 2008, no pet.) ("The effects of a family violence protective order continue to stigmatize individuals long after the date of expiration."). Because of the long-term stigmatizing effects a family violence protective order carries, we conclude that the expiration of the protective order does not render this appeal moot. We thus decide the appeal on its merits.
SUFFICIENCY OF THE EVIDENCE
In his sole issue on appeal, Nickelson contends the trial court erred in granting a final protective order against him because the evidence was legally insufficient to support a finding that family violence was likely to occur in the future. Specifically, Nickelson asserts the "past is prologue" principle, which views past acts of family violence as competent evidence sufficient to sustain the granting of a protective order, is legally insufficient to establish the likelihood of future family violence. The State responds that Nickelson has not presented a compelling legal reason to overturn established precedent applying the "past is prologue" standard to whether family violence is likely to occur in the future, and that the evidence is sufficient to support granting the final protective order. In evaluating the legal sufficiency of the evidence, we view the evidence in the light most favorable to the finding, indulging every reasonable supporting inference and disregarding contrary evidence unless a reasonable factfinder could not. City of Keller v. Wilson, 168 S.W.3d 802, 822, 827 (Tex. 2005) (if there is more than a mere scintilla of evidence, or any evidence of probative force, to support the trial court's ruling, we must uphold the order or judgment).
Under the Texas Family Code, the trial court may grant a protective order upon a finding that family violence (1) has occurred and (2) is likely to occur in the future. TEX. FAM. CODE ANN. § 85.001(a) (West 2014). Family violence is defined as:
an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself.Id. § 71.004(1) (West Supp. 2017). The trial court's findings must be supported by a preponderance of the evidence. Id. § 105.005 (West 2014). Nickelson contends the evidence was legally insufficient to support a finding that he was likely to commit family violence in the future because the trial court relied solely on evidence of past family violence to infer future violence was likely. We disagree.
Nickelson does not challenge the sufficiency of the evidence to support a finding of past family violence under the first prong.
It is well established that, "[o]ftentimes, 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." In re Epperson, 213 S.W.3d 541, 543 n.3, 544 (Tex. App.—Texarkana 2007, no pet.). The trial court may infer that the accused will likely commit family violence in the future based on evidence of past incidents of family violence. In re T.L.S., 170 S.W.3d 164, 166 (Tex. App.—Waco 2005, no pet.); see Teel v. Shifflett, 309 S.W.3d 597, 604 (Tex. App.—Houston [14th Dist.] 2010, pet. denied) ("The trial court reasonably could have concluded that future violence is likely to occur based on the testimony showing a pattern of violent behavior."); see also Clements, 251 S.W.3d at 87 (holding that a prior period of family violence spanning eight to ten months was sufficient to support a finding that family violence could occur again in the future); Valenzuela v. Munoz, No. 04-12-00660-CV, 2013 WL 4678682, at *4 (Tex. App.—San Antonio Aug. 28, 2013, no pet.) (mem. op.) (holding the likelihood that the accused will commit family violence in the future is established through instances of past family violence). As shown, evidence of past acts of family violence has long been held sufficient to show family violence is likely to occur in the future. We, therefore, will adhere to our well-established precedent and reject Nickelson's contention that past acts of family violence are per se legally insufficient to establish that family violence is likely to occur in the future.
Here, the trial court made the following findings of fact concerning past acts of family violence by Nickelson: (1) on or about April 2013, he damaged Lara's property "by striking an entertainment system with his hand;" (2) on or about November 2013, he assaulted Lara "by throwing her to the ground causing injury;" (3) on or about September 21, 2014, he assaulted Lara "by throwing her against a wall causing injury," and he then brandished a knife and threatened to commit suicide; (4) on or about December 28, 2015, he again damaged Lara's property "by throwing a vacuum into a fireplace and slamming [Lara's] son's laptop on the ground;" and (5) on or about June 25, 2016, he assaulted Lara "by holding [her] down and pressing his forearms against [Lara's] neck and chest." The trial court further found that photographs depicted the injuries sustained by Lara.
In addition to the incidents of violence detailed in the trial court's findings of fact, Lara testified about other violent incidents that occurred: (1) in April 2013, when Nickelson assaulted her, causing an injury to her eye; (2) in February 2014, when Nickelson assaulted her by throwing her across the garage, causing injury; and (3) in August 2015, when Nickelson threatened her with a gun.
Based solely on the substantial evidence of Nickelson's history of family violence against Lara, the trial court could have reasonably inferred and concluded that he was likely to commit further acts of family violence in the future. See In re Epperson, 213 S.W.3d at 543 n.3, 544 (noting that "evidence of a long-standing history of family violence may alone be sufficient to show that family violence is likely to occur in the future"); see also Valenzuela, 2013 WL 4678682, at *4. "[E]vidence that a person has engaged in abusive conduct in the past permits an inference that the person will continue this behavior in the future." Flanigan v. Glasgow, No. 04-11-00516-CV, 2012 WL 3104419, at *2 (Tex. App.—San Antonio Aug. 1, 2012, pet. denied) (mem. op.).
The evidence of past acts of violence is not, however, the only evidence that supports the trial court's finding that future acts of violence by Nickelson are likely to occur. In her testimony, Lara stated she feared Nickelson was a continued threat to her because of the approximately fifty text messages he had sent her since the June 25, 2016 incident, several of which contained threats against her. Lara's counselor, Dr. Trevino, also testified as to her concern that a person, such as Nickelson, involved in a pattern of family violence is likely to continue to commit an act of family violence in the future. While Dr. Hernandez did testify that, in her opinion, any concern for future interaction between Nickelson and Lara was "low," the trial court was the sole judge of the credibility and weight to be given to that testimony. City of Keller, 168 S.W.3d at 819.
Considering the evidence of Nickelson's long history of violence against Lara, along with his numerous threatening text messages to Lara after the last assault and Dr. Trevino's concern he would engage in future violence, we conclude there is much more than a scintilla of evidence that Nickelson is likely to commit acts of family violence in the future. See Boyd v. Palmore, 425 S.W.3d 425, 432 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (determining there was more than a scintilla of evidence that the accused would commit future acts of violence where he was involved in a prior act of family violence coupled with the sending of threatening and harassing text messages). We therefore conclude that the record contains legally sufficient evidence to support the trial court's fact findings and conclusions of law that Nickelson has committed family violence and is likely to commit family violence in the future. See TEX. FAM. CODE ANN. § 85.001. Accordingly, we affirm the trial court's protective order.
Rebeca C. Martinez, Justice