Larry Dale Reedy v. The State of Texas--Appeal from 124th District Court of Gregg County

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State: Texas

Court: Texas Northern District Court

Docket No: 12-03-00089-CR

Case Date: 11/26/2003

Plaintiff: Larry Dale Reedy

Defendant: The State of Texas--Appeal from 124th District Court of Gregg County

Preview:In the Interest of T.L.S. and R.L.P., Children--Appeal
from County Court at Law of Ellis County
IN THE
TENTH COURT OF APPEALS
No. 10-04-00099-CV
In the Interest of T.L.S. and R.L.P., Children,
From the County Court at Law
Ellis County, Texas
Trial Court No. 67,213CCL
Opinion
Deshawn Dismuke appeals from a family violence protective order issued against him with reference to the children of
his former girlfriend. He contends in his sole issue that there is no evidence and factually insufficient evidence to
support the court s finding that he is likely to commit family violence in the future. We will affirm.
Trina Smith is the biological mother of the children who are the subject of the protective order. The Department of
Protective and Regulatory Services removed the children from Smith s home in late 2003 because of severe injuries.
At the time, Dismuke and Smith were living together. Smith told investigators that she suspected Dismuke had injured
the children. Ultimately, Smith and Dismuke were arrested for injury to a child.
DPRS filed a termination suit against Smith. The children s guardian ad litem filed an application for a family
violence protective order on behalf of the children. The court heard both matters in the same proceeding.
On the second day of trial, Smith agreed to voluntarily relinquish her parental rights and be subject to a permanent
injunction prohibiting her from any further contact with the children. DPRS called Dismuke as a witness, but he
invoked the Fifth Amendment and refused to answer any questions.
Dismuke moved for an instructed verdict [1] on the basis that the applicant had offered no evidence that he would
commit family violence in the future. The court denied Dismuke s motion and issued the protective order.
The protective order recites the following pertinent findings:
[T]he court finds that Deshawn Dismuke committed family violence against Petitioners as follows:
On or about November 29, 2003 and during the days and weeks preceding, Deshawn Dismuke, acting in concert with
Trina Smith, caused serious bodily injury to the minor child [R.L.P.] by knowingly breaking his right leg thereby
resulting in a spiral fracture to the tibia.
On or about December 23, 2003 and during the days and weeks preceding, Deshawn Dismuke, acting in concert with
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Trina Smith, caused serious bodily injury to the minor child [R.L.P.] by knowingly applying blunt force trauma and a
blow to the abdomen area thereby resulting in the loss of blood, as well as the death and later removal of
approximately 24 inches of the small intestine.
In addition to the above specified acts of family violence, Deshawn Dismuke, acting in concert with Trina Smith,
engaged in an ongoing pattern of serious physical abuse to [R.L.P.] and/or [T.L.S.] which included numerous non-
accidental injuries such as burns to various parts of the body, arm fractures, cuts and tears to bodily tissue including a
torn frenulum, eye injuries, compression fractures to back vertebrae, along with conduct resulting in probable sexual
abuse.
The court further finds that Deshawn Dismuke is likely to commit family violence in the future.
Dismuke contends in his sole issue that the record contains no evidence or factually insufficient evidence to support the
finding that he is likely to commit family violence in the future because: (1) the record contains no direct evidence that
he will commit family violence in the future; and (2) the likelihood of future contact between the children and himself
is remote because (a) he is not the biological father of either child, (b) he is not married to Smith, and (c) Smith s
parental rights have been terminated and she has been permanently enjoined from further contact with the children.
We apply the usual no-evidence and factual insufficiency standards of review in an appeal from a protective order.
Pena v. Garza, 61 S.W.3d 529, 532 (Tex. App. San Antonio 2001, no pet.).
The central issue in this appeal is whether evidence of past family violence will support a finding of a likelihood of
future family violence. During the last decade, a principle has emerged in parental termination and child custody cases
which recognizes that evidence that a parent has engaged in abusive or neglectful conduct in the past permits an
inference that the parent will continue this behavior in the future. See e.g. Williams v. Williams, 150 S.W.3d 436, 451
(Tex. App. Austin 2004, pet. denied); In re K.A.S., 131 S.W.3d 215, 229-30 (Tex. App. Fort Worth 2004, pet. denied);
In re D.L.N., 958 S.W.2d 934, 941 (Tex. App. Waco 1997, pet. denied). As Chief Justice Thomas of this Court
presciently observed in a 1992 child custody decision, Past is often prologue. Ray v. Burns, 832 S.W.2d 431, 435 (Tex.
App. Waco 1992, no writ). This principle should apply in family violence protective order cases as well.[2] See Pena,
61 S.W.3d at 532 (finding evidence of past conduct legally and factually sufficient to sustain the protective order ).
Here, the trial court expressly found that Dismuke had engaged in family violence in the past. Dismuke does not
challenge these findings. Therefore, they are binding unless the contrary was established as a matter of law or there is
no evidence to support the findings. See McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex. 1986); Zagorski v.
Zagorski, 116 S.W.3d 309, 319 (Tex. App. Houston [14th Dist.] 2003, pet. denied); Tarrant Regl. Water Dist. v. Gragg,
43 S.W.3d 609, 619 (Tex. App. Waco 2001), aff d, 151 S.W.3d 546 (Tex. 2004).
Having reviewed the evidence in the record, we initially conclude that more than a scintilla of evidence supports the
unchallenged findings that Dismuke committed family violence against the children. From this evidence, the trial court
could infer that Dismuke will likely commit family violence in the future. See Williams, 150 S.W.3d at 451; K.A.S.,
131 S.W.3d at 229-30; D.L.N., 958 S.W.2d at 941. Thus, the record contains more than a scintilla of evidence that
Dismuke will likely commit family violence in the future.
Dismuke also challenges the factual sufficiency of the evidence to support this finding. He contends that the evidence
is factually insufficient because the likelihood of future contact between the children and himself is remote because (1)
he is not the biological father of either child, (2) he is not married to Smith, and (3) Smith s parental rights have been
terminated and she has been permanently enjoined from further contact with the children.
We reject outright Dismuke s first two contentions in this regard because his non-parent status and his marital status
did not stop him from committing family violence against the children in the past. See Williams, 150 S.W.3d at 451;
K.A.S., 131 S.W.3d at 229-30; D.L.N., 958 S.W.2d at 941. Therefore, the central issue is whether the termination of
Smith s parental rights and the permanent injunction preponderate against a finding that Dismuke will likely commit
family violence in the future.
A finding that Dismuke will not likely commit future violence requires the factfinder to infer that he will have no
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future contact with the children based on one of two underlying inferences. The first of these underlying inferences is
that, because Smith s parental rights have been terminated and she has been enjoined from future contact with the
children, she will comply with the injunction. The second is that Dismuke will have no future contact with Smith.
Because neither Dismuke nor Smith testified, there is simply no evidence in the record from which the trial court could
infer that they will have no future contact with each other.
Regarding the first underlying inference, the trial court could only speculate that Smith will comply with the injunction.
And from that speculation, Dismuke essentially argues that the court could properly infer that as a result Dismuke will
have no future contact with the children. For the court to do so, would constitute an impermissible stacking of
inferences. See Marathon Corp. v. Pitzner, 106 S.W.3d 724, 728-29 (Tex. 2003) (per curiam). Therefore, we conclude
that the evidence is factually sufficient to support the court s finding that Dismuke is likely to commit family violence
in the future.
We overrule Dismuke s sole issue and affirm the judgment.
FELIPE REYNA
Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
Affirmed
Opinion delivered and filed June 29, 2005
[CV06]
[1] In a nonjury proceeding, the proper procedural vehicle in this situation is a motion for judgment. See e.g. Barr v.
AAA Tex., LLC, No. 10-03-00243-CV, 2005 Tex. App. LEXIS 2248, **3-4 (Tex. App. Waco Mar. 23, 2005, no pet.
h.). This is so because there is no other factfinder to instruct regarding the verdict.
[2] Texas courts have implicitly applied this principle in protective order cases but, with the exception of Pena, only in
unpublished memorandum opinions. See e.g. Siegert v. Flannery, No. 04-03-00487-CV, 2004 Tex. App. LEXIS 6989,
**2-6 (Tex. App. San Antonio Aug. 4, 2004, no pet.) (mem. op.); Colvin v. Colvin, No. 03-03-00234-CV, 2004 Tex.
App. LEXIS 3534, **18-21 (Tex. App. Austin Apr. 22, 2004, no pet.) (mem. op.).
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