Opinion filed February 16, 2017




                                        In The


        Eleventh Court of Appeals
                                      __________

                                  No. 11-15-00061-CV
                                      __________

                    CURTIS WAYNE TEER, Appellant
                               V.
                       PAULA NEAL, Appellee

                 On Appeal from the County Court at Law No. 2
                            Midland County, Texas
                      Trial Court Cause No. FM-58,485

                     MEMORANDUM OPINION
      This is an appeal from a protective order issued by the trial court against
Appellant, Curtis Wayne Teer. In two issues, Appellant asserts (1) that the trial court
abused its discretion when it issued the order by default and refused to grant a new
trial and (2) that the evidence was insufficient to show that violence would likely
occur in the future. See TEX. FAM. CODE ANN. §§ 81.001, 85.001(a)(1) (West 2014).
We affirm.
                                    Background Facts
      On February 5, 2015, Paula Neal filed an application for a protective order
against Appellant. The application was supported by Neal’s affidavit. The trial
court entered a temporary restraining order the next day. On February 18, the trial
court held a hearing on the application and signed the final protective order from
which Appellant appeals.
      Although Appellant was served with a citation in this case on February 10, he
did not appear for the February 18 hearing, nor did he file an answer or any motion
prior to the hearing. When the hearing began, the trial court noted that a citation had
been duly served upon Appellant at the detention center in Midland County. The
assistant district attorney stated at the February 18 hearing that Appellant “is
currently residing in the Midland County jail and did not make a request to appear.”
The hearing proceeded without Appellant.
      Neal was the only witness to testify at the hearing. She testified about her
relationship with Appellant and about his past violent behavior. Neal met Appellant
in 2012, and Appellant moved into Neal’s house in the fall of 2012. They lived
together for about nine or ten months. Neal said that, during their dating relationship,
Appellant “was very violent.” Neal estimated that Appellant had physically abused
her on fifteen to twenty occasions. She had called the police at least twice after
being assaulted by Appellant: once in May 2013 and once in October 2013.
      Neal described the October 2013 assault, which occurred shortly after the
couple’s breakup. Appellant called and asked Neal to put his coat next to the gas
meter in the alley. When Neal went outside with the coat, Appellant was in the alley
waiting for her. Neal said that Appellant was “very angry” because she had had his
phone taken off her family plan. Appellant followed Neal into the house and
proceeded to hit, slap, and choke her. The assault lasted several hours. The next
morning, Neal called 9-1-1 and filed a police report. The police took photographs
of Neal’s injuries that morning, and those photographs were admitted into evidence
at the hearing.


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      Neal also testified about a September 2013 assault that occurred when she
changed the locks. When asked what happened during that incident, Neal said:
“Same thing he always did[:] pull my hair, slap me, rape me, cuss me, call me
everything in the book.”
      Shortly after the October 2013 incident, Appellant moved to Arizona. He was
later arrested and, at the time of the February 18 hearing, was in jail awaiting trial
on charges of assault family violence by strangulation for the October 2013 assault
on Neal. While he was in jail, Appellant sent Neal letters and attempted to call her
several times—as recently as one month prior to the February 18 hearing. Neal
testified that she was still afraid of Appellant at the time of the hearing and feared
that, if Appellant were to be released from jail, he would hurt her again. The assistant
district attorney explained the potential for Appellant to be released from jail in the
near future even if convicted of the charged offense.
      At the end of the hearing, the trial court found that family violence had
occurred “without a doubt” and that it is likely to occur in the future. The trial court
noted that Appellant “seems to have a repetitive vein about him.”
                                        Analysis
      In his first issue, Appellant argues that the trial court abused its discretion
when it entered the final protective order by default and when it refused to grant a
new trial. Appellant specifically asserts in his first issue that his failure to appear or
file an answer was neither intentional nor the result of conscious indifference but
was due to mistake or accident, that he had a meritorious defense, and that the
granting of a new trial would not have harmed Neal.
      First, we disagree with Appellant’s assertion that the trial court abused its
discretion when it held a hearing and entered the final protective order in Appellant’s
absence. Appellant stated in a motion that he filed after the issuance of the protective
order that he had wanted to appear at the hearing but that no arrangements had been
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made for him to be transported from the jail. Although an inmate cannot be denied
access to the courts based upon his status as an inmate, an inmate does not have an
absolute right to be physically present in a civil action; he must request a bench
warrant and must justify the need for his presence. In re Z.L.T., 124 S.W.3d 163,
165–66 (Tex. 2003). An inmate may also appear in a civil action by other means,
such as by telephone. See id. At the time of the hearing in this case, Appellant had
not filed a request to be present or to appear by some other means.
        Second, we observe that Appellant’s arguments in his first issue are based on
the well-established Craddock elements for setting aside a default judgment. See
Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939). There are
three elements to the Craddock test: (1) the failure of the defendant to answer or
appear was not intentional or the result of conscious indifference on his part, but was
due to a mistake or an accident; (2) the motion for new trial sets up a meritorious
defense; and (3) the granting of the motion for new trial will occasion no delay or
otherwise work an injury to the plaintiff. Bank One, Tex., N.A. v. Moody, 830
S.W.2d 81, 82–83, 85 (Tex. 1992). When a defaulting party moves for a new trial
and meets all three elements of the Craddock test, a trial court abuses its discretion
if it fails to grant a new trial. Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922,
926 (Tex. 2009).
        Although Appellant timely challenged the protective order in a postjudgment
motion for new trial,1 he did not satisfy the three elements of the Craddock test.
Under the second element of Craddock, the defaulting defendant’s motion for new
trial must set up a meritorious defense. Ivy v. Carrell, 407 S.W.2d 212, 214 (Tex.
1966). To do so, the defendant must allege facts in his motion that “in law would


        1
        We note that Appellant styled his motion as a motion in arrest of judgment. The trial court treated
Appellant’s motion in arrest of judgment, along with a letter that Appellant sent to the trial court, as a
motion for new trial.
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constitute a defense” to the cause of action, and the motion must be supported by
affidavits or other evidence constituting prima facie proof of the defendant’s
meritorious defense. Id. The court in Ivy stated that these requirements are
“necessary to prevent the reopening of cases to try out fictitious or unmeritorious
defenses.” Id. Appellant did not support his motion with an affidavit, nor did he
allege facts that would constitute a defense. In this regard, he merely asserted in his
motion and in his letter that there were inconsistencies in Neal’s prior statements.
Appellant did not meet the requirements of the second element of Craddock.
Additionally, we note also that Appellant did not mention the third Craddock
element in his motion—that Neal would not be injured by the granting of a new trial.
        For the above reasons, we hold that the trial court did not abuse its discretion
when it held the hearing in Appellant’s absence, issued the final protective order by
default, and overruled Appellant’s motion for new trial. We overrule Appellant’s
first issue.
        In his second issue, Appellant challenges the sufficiency of the evidence to
support the trial court’s finding that family violence would likely occur in the future.2
At the outset, we note that the intermediate courts of appeals disagree as to the
standard of review to be applied when reviewing the sufficiency of the evidence to
support the issuance of a protective order. See St. Germain v. St. Germain, No. 14-
14-00341-CV, 2015 WL 4930588, at *2 n.1 (Tex. App.—Houston [14th Dist.]
Aug. 18, 2015, no pet.) (mem. op.). Compare In re Epperson, 213 S.W.3d 541, 542
(Tex. App.—Texarkana 2007, no pet.) (applying abuse of discretion standard of
review because protective order provides injunctive relief), with Ulmer v. Ulmer,


        2
          We note that, to the extent that Appellant challenges the temporary protective order, we do not
have jurisdiction to consider his complaint because the temporary protective order was superceded by a
final protective order. See Ford v. Harbour, No. 14-07-00832-CV, 2009 WL 679672, at *2 (Tex. App.—
Houston [14th Dist.] Mar. 17, 2009, no pet.) (mem. op.).
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130 S.W.3d 294, 296–97, 299–300 (Tex. App.—Houston [14th Dist.] 2004, no pet.)
(recognizing that protective order provides injunctive relief but applying the legal
and factual sufficiency standard of review). However, we have previously stated
that we will review sufficiency challenges in this type of case “under the traditional
standard of review” for sufficiency challenges. Burt v. Francis, No. 11-14-00244-
CV, 2016 WL 4574286, at *3 (Tex. App.—Eastland Aug. 25, 2016, no pet.) (citing
In re Doe, 19 S.W.3d 249, 253 (Tex. 2000) (applying the legal and factual
sufficiency standard in a case under Section 33.004(i) of the Family Code where the
statute provided that court “shall” enter an order under certain circumstances);
Vongontard v. Tippit, 137 S.W.3d 109, 112 (Tex. App.—Houston [1st Dist.] 2004,
no pet.)).
       In a legal sufficiency challenge, we view the evidence in the light most
favorable to the judgment and indulge every reasonable inference that would support
it. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). We must credit
favorable evidence if a reasonable factfinder could and disregard contrary evidence
unless a reasonable factfinder could not. Id. at 807, 827. If there is any evidence of
probative force to support the finding, we will overrule the no-evidence challenge.
See Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997); In re
King’s Estate, 244 S.W.2d 660, 661 (Tex. 1951). In a factual sufficiency challenge,
we must consider all of the evidence and determine whether the evidence in support
of the findings is so weak as to be clearly wrong and unjust or whether the findings
are so against the great weight and preponderance of the evidence as to be clearly
wrong and manifestly unjust. Dow Chemical Co. v. Francis, 46 S.W.3d 237, 242
(Tex. 2001); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986).
       Under the sections of the Family Code that are relevant to this case, a court
shall render a protective order if the court finds that family violence (1) has occurred
and (2) is likely to occur in the future. FAM. §§ 81.001, 85.001. Appellant contends
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that the evidence is insufficient to show the second element—that family violence is
likely to occur in the future. We disagree.
      Neal testified about Appellant’s prior violent conduct toward her and about
his then-recent attempts to contact her. In a letter that Appellant sent to Neal from
jail, Appellant stated:
               It is Thursday evening and I just got off the phone with you. How
      ironic that I’d just come back from Anger Management . . . because the
      way you spoke to me was sure enough to make anyone angry. And it’s
      not just the way things are between us now – your attitude towards me
      for the wrong I’ve done – you began to snap at me and speak to me that
      way soon after we started living together. I just didn’t respond badly
      . . . at first . . . (ellipses and emphasis in original).
Neal was afraid that, if Appellant were released from jail, he would harm her again.
The record showed that Appellant could have been released at any time. Neal’s
testimony indicated that she was repeatedly assaulted by Appellant and that those
assaults were quite violent. Viewing the evidence in the light most favorable to the
trial court’s judgment, we conclude that the evidence supports the trial court’s
determination that family violence was likely to occur in the future. See In re
Epperson, 213 S.W.3d at 543–44 (upholding trial court’s determination that family
violence was likely to occur in the future based upon evidence of the defendant’s
past, continuing pattern of behavior).         As noted by the court in Epperson:
“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. at 544. We hold that the trial court reasonably could have concluded that
Appellant was likely to commit family violence in the future.            We overrule
Appellant’s second issue.




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                                   This Court’s Ruling
      We affirm the order of the trial court.




                                                     JOHN M. BAILEY
                                                     JUSTICE


February 16, 2017
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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