Todd Lakner v. Kristin Lynette Van Houten

Opinion issued March 31, 2011 In The Court of Appeals For The First District of Texas ———————————— NO. 01-09-00422-CV ——————————— Todd lakner, Appellant V. kristin lynette van houten, Appellee On Appeal from the 257th District Court Harris County, Texas Trial Court Case No. 2008-75138 MEMORANDUM OPINION This is an appeal from a protective order granted to appellee Kristin Van Houten against appellant Todd Lakner after a bench trial. In five issues, Lakner argues that (1) the evidence is legally and factually insufficient to support the finding that Lakner committed family violence, (2) the evidence is legally and factually insufficient to support the finding that Lakner is likely to commit family violence in the future, and (3) the trial court erred in failing to file findings of fact and conclusions of law. Because findings of fact and conclusions of law have now been filed, we overrule Lakner’s fifth issue. We overrule Lakner’s first four issues because we find the evidence legally and factually sufficient to support the trial court’s findings. Background Kristin Van Houten and Todd Lakner dated for approximately one year. In May 2008, Van Houten broached the subject of a break-up with Lakner, but Lakner urged Van Houten to try to work things out. On July third of that year, Van Houten made another attempt to break off the relationship and told Lakner to leave her alone. The next day, however, Lakner appeared at Van Houten’s house. When Van Houten insisted that the two part ways, Lakner left; but Lakner returned to Van Houten’s house later that evening. At that time, Lakner entered Van Houten’s house and refused to leave for a time, despite being repeatedly asked to leave by both Van Houten and her father. In the days that followed, Lakner continued to contact Van Houten, leaving a letter in her mailbox and sending her roses at her office. After his visit to Van Houten’s house on July fourth, Van Houten told Lakner not to ever come back. On July seventh, Lakner returned to Van Houten’s home, used his vehicle to block Van Houten in her driveway, and refused to allow her to leave. Lakner then got out of his car and began yelling at Van Houten. Van Houten said that when Lakner tried to grab her, her ten year old daughter went inside and called the police. Van Houten described her daughter as scared by Lakner’s conduct. Lakner left before police arrived, but returned while the police were still there. The police gave Lakner a trespass warning and instructed him to stay away from Van Houten’s home. During his conversation with the police, Van Houten described Lakner as “real red faced” and “belligerent and shaking his head and his arms.” Van Houten described the episode as “very scary.” Van Houten later became aware that Lakner was following her. On numerous occasions from July through December 2008, Lakner trailed Van Houten on roadways around Houston. Van Houten said that she sighted Lakner following her at least once a week during this period and that she had never run into Lakner on these roads while they were dating. Van Houten relayed one incident in early November 2008, when Lakner came upon her on a feeder road at a high speed and cut her off. She stated that when she sped up, he sped up and when she slowed down, he slowed down. She said that this event made her “very uncomfortable and scared.” Van Houten also relayed another incident in late November 2008 when her daughter spotted Lakner following them; Van Houten testified that her daughter was scared by the event and appeared “shaken.” Eventually, Van Houten asked a friend of hers, Morias Ferhop, to follow her in a separate car because she was afraid of Lakner. Ferhop witnessed Lakner following Van Houten on approximately six occasions. Ferhop described Lakner’s driving on those occasions as erratic: running red lights, cutting across multiple lanes of traffic, and cutting off other drivers. Van Houten reported Lakner’s behavior to the police and began videotaping it. The investigator obtained records from the Harris County Southwest Toll Plaza from August through October 2008, which show that Lakner drove through that toll plaza at approximately the same time as Van Houten more than a dozen times during that period, frequently passing back through the same toll plaza minutes later. As a result of his following Van Houten, the State brought stalking charges against Lakner in December 2008. According to Van Houten, a co-worker of Lakner’s, Matt Lloyd, told her that Lakner had followed her to the circus one day, where he saw her with another man. Van Houten said that Lloyd relayed threats made by Lakner that he was “going to do whatever he could to get sweet revenge.” Van Houten also said that Lloyd told her to “be careful . . . he would put you six feet under.” At trial, Lloyd denied making these statements. On December 29, 2008, Van Houten filed an application for a protective order, on behalf of herself and her child, against Lakner. The application alleged that Van Houten and Lakner were previously involved in a dating relationship. Attached to the application was Van Houten’s affidavit, stating that Lakner had stalked her “about once a week since July 7, 2008.” Van Houten described several incidents when Lakner followed her in his vehicle and Lloyd’s warning about Lakner’s threat to put her “six feet under.” After a bench trial, the trial court entered a protective order on January 29, 2009. The trial court later entered an amended protective order in response to arguments from Lakner that the January 29 order interfered with his ability to perform his duties as a firefighter by restricting his use of certain roadways. Lakner subsequently filed a motion for new trial. In the motion for new trial, Lakner alleged that “there was no proof of family violence or of dating violence.” The trial court’s docket sheet indicates that, at the April 29 hearing, neither Lakner nor his attorney made an appearance, and accordingly, the motion was denied. After Lakner filed this appeal, we abated the appeal for entry of findings of fact and conclusions of law. The trial court entered findings of fact and conclusions of law on November 23, 2010; the trial court entered amended findings of fact and conclusions of law on December 14, 2010. The trial court’s amended findings and conclusions included findings that (1) Lakner followed Van Houten in his vehicle on multiple occasions; (2) on November 10, 2008, Lakner maneuvered his vehicle in such a way as to cause Van Houten to be uncomfortable and scared; and (3) Lakner had stalked Van Houten. The trial court’s amended findings and conclusions also included conclusions that the vehicular conduct and the stalking each constituted family violence and were likely to occur again in the future. Legal and Factual Sufficiency In his first and second issues, Lakner argues that the evidence is legally and factually insufficient to support a finding that he committed family violence. In his third and fourth issues, Lakner argues that the evidence is legally and factually insufficient to support a finding that family violence is likely to occur in the future. A. Standard of Review When the trial court acts as a fact-finder, we review its findings under the legal and factual sufficiency standards. In re Doe, 19 S.W.3d 249, 253 (Tex. 2000); Vongontard v. Tippit, 137 S.W.3d 109, 112 (Tex. App.—Houston [1st Dist.] 2004, no pet). When a party who does not have the burden of proof at trial challenges the legal sufficiency of the evidence, we consider all of the evidence in the light most favorable to the prevailing party, indulging every reasonable inference in that party’s favor and disregarding contrary evidence unless a reasonable fact-finder could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); City of Houston v. Hildebrandt, 265 S.W.3d 22, 27 (Tex. App.—Houston [1st Dist.] 2008, pet. denied) (citing Assoc. Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 285–86 (Tex. 1998)). “If there is any evidence of probative force to support the finding, i.e., more than a mere scintilla, we will overrule the issue.” Hildebrandt, 265 S.W.3d at 27 (citing Haggar Clothing Co. v. Hernandez, 164 S.W.3d 386, 388 (Tex. 2005)). In reviewing a factual sufficiency complaint, we must first examine all of the evidence. Lofton v. Texas Brine Corp., 720 S.W.2d 804, 805 (Tex. 1986). Having considered and weighed all the evidence, we should set aside the verdict only if the evidence is so weak, or the finding is so against the great weight and preponderance of the evidence, that it is clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). We cannot merely substitute our opinion for that of the trier of fact and determine that we would reach a different conclusion. Hollander v. Capon, 853 S.W.2d 723, 726 (Tex. App.—Houston [1st Dist.] 1993, writ denied). The trier of fact is the exclusive judge of the facts proved, the credibility of the witnesses, and the weight to be given to their testimony. Dyson v. Olin Corp., 692 S.W.2d 456, 458 (Tex. 1985). When the trier of fact is presented with conflicting evidence, it may believe one witness and disbelieve others. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986). The trier of fact is permitted to resolve inconsistencies in the testimony of any witness. Id. The trier of fact may also draw inferences from the facts and choose between conflicting inferences. Ramo, Inc. v. English, 500 S.W.2d 461, 467 (Tex. 1973). We cannot overturn the fact-finder’s ruling unless only one inference can be drawn from the evidence. Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 461 (Tex. 1992). B. Applicable Law A trial court shall render a protective order if it “finds that family violence has occurred and that family violence is likely to occur in the future.” Tex. Fam. Code Ann. § 85.001(b) (West 2005). “Family violence” includes “dating violence,” which is defined as “an act by an individual that is against another individual with whom that person has or has had a dating relationship and that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the individual in fear of imminent physical harm, bodily injury, assault, or sexual assault[.]” Tex. Fam. Code Ann. §§ 71.004(3), 71.0021 (West 2005). C. Analysis The crux of each of Lakner’s legal and factual sufficiency of the evidence challenges is his contention that the evidence is insufficient because there was no testimony that Lakner “physically harmed” Van Houten. This, however, misconstrues the definition of family violence. Family violence does not require actual physical harm; threats that reasonably place the victim in fear of imminent harm are sufficient. Tex. Fam. Code Ann. § 71.004 (West 2005). Further, no overt express threat of violence is required to place a reasonable person in fear. See Williams v. State, 827 S.W.2d 614, 616 (Tex. App.—Houston [1st Dist.] 1992, pet. ref’d). The fact finder may conclude that an individual perceived fear or was “placed in fear,” in circumstances where no actual threats were conveyed. Wilmeth v. State, 808 S.W.2d 703, 706 (Tex. App.—Tyler 1991, no pet.) (noting fact finder may find requisite fear from menacing glance and hand gesture, even in absence of verbal threats). The course of conduct between the threatener and the victim is important to understanding whether there is sufficient evidence of a threat. See Olivas v. State, 203 S.W.3d 341, 349–50 (Tex. Crim. App. 2006). Van Houten told Lakner that their relationship was over. Rather than discontinuing his contact with Van Houten, however, Lakner appeared uninvited at her home, refusing to leave on the first occasion and leaving only after a warning from the police on the second occasion. After the police instructed Lakner to stay away from Van Houten’s home, Lakner began following Van Houten on the roadways at least once a week for over six months. The unsafe nature of Lakner’s driving while following Van Houten is some evidence to support the trial court’s conclusion that Lakner reasonably placed Van Houten in imminent fear for herself and her daughter, including the events in November 2008 where Van Houten testified that Lakner’s erratic driving while following her made Van Houten scared and made her daughter scared. Furthermore, Lakner’s coworker, Lloyd, relayed death threats made by Lakner against Van Houten. See Battles v. State, 45 S.W.3d 694, 698–701 (Tex. App.—Tyler 2001, no pet.) (noting that veiled threat from defendant that someone should “watch over” victim’s son was sufficient to place victim in reasonable fear). Although Lloyd denied this at trial, the trier of fact was free to believe Van Houten and discredit Lloyd. See Dyson, 692 S.W.2d at 458 (trier of fact is sole judge of credibility of witnesses); McGalliard, 722 S.W.2d at 697 (trier of fact may believe one witness and disbelieve another). The trial court could have reasonably determined that Lakner’s behavior was threatening and constituted family violence by placing Van Houten in fear of imminent physical harm or bodily injury. See Tex. Fam. Code Ann. § 71.004; Sisk v. State, 74 S.W.3d 893, 900 (Tex. App.—Fort Worth 2002, no pet.) (finding in stalking case that defendant’s conduct in following victim reasonably constituted threat of bodily injury). At the time the protective order was entered, Lakner’s threatening conduct had spanned a period of approximately six months after the breakup. In light of evidence that Lakner had failed to heed past warnings and requests to stop contacting and following Van Houten, Van Houten testified that she believed Lakner’s behavior would continue. The trial court, therefore, could have reasonably concluded that it was likely that Lakner would, in the future, commit further acts of family violence against Van Houten. Cf. Teel v. Shifflett, 309 S.W.3d 597, 604 (Tex. App.—Houston [14th Dist.] 2010, pet. denied) (holding that trial court could reasonably conclude that future violence was likely based on testimony showing pattern of behavior); Clements v. Haskovec, 251 S.W. 3d 79, 87–88 (Tex. App.—Corpus Christi 2008, no pet.) (holding that a pattern of past behavior that spans several months, as opposed to isolated incidents, will support a finding that future violence is likely to occur). Because there is more than a scintilla of evidence to sustain the protective order and because the trial court’s decision is not so against the great weight and preponderance of the evidence as to be manifestly unjust, the evidence is legally and factually sufficient to sustain the protective order. We overrule appellant’s first four points of error. Conclusion We affirm. Elsa Alcala Justice Panel consists of Chief Justice Radack and Justices Alcala and Bland.