J.G. v. M.G.

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-24-00496-CV
___________________________

J.G., Appellant

V.

M.G., Appellee

On Appeal from the 367th District Court
Denton County, Texas
Trial Court No. 24-8617-367

Before Birdwell, Bassel, and Womack, JJ.
Memorandum Opinion by Justice Birdwell
MEMORANDUM OPINION

I. Background

Appellant J.G. (Mother)1 appeals from the trial court’s denial of a

family-violence protective order against Appellee M.G. (Father). See Tex. Fam. Code

Ann. § 81.001. In a single issue, Mother argues that the evidence is legally and

factually insufficient to support the trial court’s failure to find that Father committed

family violence by assaulting her during an argument. We affirm the trial court’s order.

II. Brief Procedural Background 2

At the time of the protective-order hearing, Father and Mother were married

but were in the midst of divorce proceedings. 3 They have four children together. In

her protective-order application, Mother alleged that Father had engaged in family

violence by committing acts intended to cause her bodily injury, assault, sexual assault,

or fear thereof. According to the affidavit attached to Mother’s application, Father

had displayed a continued pattern of alcohol and drug abuse, often indulging in such

behaviors around Mother and their children. Mother also alleged that Father had

attempted to engage in unwanted sexual contact with her.

1
We refer to the parties by family relationship to protect the identities of their
minor children.
2
We dispense with a detailed background and summarize the evidence
presented at the hearing within our discussion of Mother’s issue.
3
The Honorable Karen Alexander, presiding judge of the 393rd District Court
of Denton County, heard the application for a protective order in conjunction with
the parties’ application for temporary orders in their divorce.

2
Five days after Mother filed her application, the trial court entered a temporary

ex parte protective order that excluded Father from the parties’ residence and

prohibited him from contacting Mother or, effectively, the children.4 The trial court

also set a date for a hearing on the protective-order application. After the

protective-order hearing––at which the trial court also rendered temporary orders5 in

the parties’ pending divorce proceeding––the trial court denied Mother’s application.

In doing so, the trial court noted on the record, “I don’t believe either one of them

[Mother or Father] in part.” However, the trial court expressed its intention that in the

temporary orders it would continue the contact and conduct injunctions in the

temporary ex parte protective order but make them mutual; the only exceptions

would be (1) allowing Father and Mother to contact each other through Our Family

Wizard; (2) excluding the restrictions on contact with the children; and (3) excluding

4
At the time of the application hearing, Father had not seen the children for
close to a month.
5
Mother had sought to be named temporary sole managing conservator of the
children. But on the record, the trial court named the parties joint managing
conservators and ordered a possession schedule. Although the trial court did not give
Father overnight possession of the children, it did not order that his possession be
supervised. The trial court also stated that each party would be allowed to drug test
the other.

3
the restriction on going to, near, or within 100 feet of the children’s school or

extracurricular activities or each other when facilitating possession of the children. 6

III. Evidence is Sufficient to Support Non-finding

A. Standards of Review

When a party attacks the legal sufficiency of an adverse finding on an issue on

which the party had the burden of proof, the party must demonstrate on appeal that

the evidence establishes, as a matter of law, all vital facts in support of the issue.

Cath. Diocese of El Paso v. Porter, 622 S.W.3d 824, 834 (Tex. 2021). In reviewing a

“matter of law” challenge, we must first examine the record for evidence that

supports the finding, while ignoring all evidence to the contrary.

Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). If no evidence supports the

finding, then we will examine the entire record to determine if the contrary position is

established as a matter of law. Id. We will sustain the issue only if the contrary

position is conclusively established. Id. Evidence conclusively establishes a fact when

the evidence leaves “no room for ordinary minds to differ as to the conclusion to be

drawn from it.” Int’l Bus. Mach. Corp. v. Lufkin Indus., LLC, 573 S.W.3d 224, 235

(Tex. 2019).

When reviewing an assertion that evidence is factually insufficient to support a

finding, we set aside the finding only if, after considering and weighing all the

The trial court also ordered a custody evaluation and psychological
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examinations and enjoined both Mother and Father from consuming alcohol and
controlled substances.

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pertinent record evidence, we determine that the evidence supporting the finding is so

weak, or so contrary, to the overwhelming weight of all evidence, that the finding

should be set aside and a new trial ordered. Pool v. Ford Motor Co., 715 S.W.2d 629, 635

(Tex. 1986) (op. on reh’g); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986);

Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965). Factual-insufficiency issues depend

on who has the burden of proof at trial. See Gooch v. Am. Sling Co., 902 S.W.2d 181,

184 (Tex. App.—Fort Worth 1995, no writ). When the party with the burden of proof

appeals from a failure to find, the party must show that the failure to find is against

the great weight and preponderance of the credible evidence. Dow Chem. Co.,

46 S.W.3d at 242; Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 651 (Tex. 1988);

see Gonzalez v. McAllen Med. Ctr., Inc., 195 S.W.3d 680, 681–82 (Tex. 2006).

Findings of fact are the exclusive province of the factfinder. Bellefonte

Underwriters Ins. v. Brown, 704 S.W.2d 742, 744 (Tex. 1986). The factfinder is the sole

judge of the witnesses’ credibility and the weight to be given to their testimony. City of

Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005); Golden Eagle Archery, Inc. v. Jackson,

116 S.W.3d 757, 761 (Tex. 2003). Thus, a court of appeals cannot make original fact

findings; it can only “unfind” facts. Tex. Nat’l Bank v. Karnes, 717 S.W.2d 901, 903

(Tex. 1986).

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B. Evidence at Protective-Order Application Hearing

Mother’s argument on appeal focuses on a single event7 that occurred on

September 9, 2024, for which she presented video evidence that depicts only part of

what happened. She argues that this video evidence, along with Father’s admission

that he had grabbed Mother’s cell phone to prevent her recording him, conclusively

proves that Father committed family violence. We first recount Mother’s and Father’s

versions of the event and then discuss the video evidence.

Mother testified that on September 9, 2024, Father came home intoxicated

around 10:30 p.m. According to Mother, she had gone to bed with two of the

children in the master bedroom and was awakened at approximately 2:00 a.m. by

Father’s sitting at the edge of her bed watching her. This worried her, and she asked

him to leave. Father told her that he didn’t have to leave because he had a right to be

there and could talk to her if he wanted to.8 She began recording him with her phone.

7
In addition to this event, Mother also testified that on another occasion––
while the couple had been on and off and Father had left the house after she declined
his sexual advances––she woke up after going to sleep to find Father digitally
penetrating her. She said that she felt unsafe and violated but that Father told her it
was her duty to fulfill his sexual needs. Nevertheless, the couple continued to live
together but slept in separate bedrooms. Mother was the only source of this evidence.
Acknowledging the standard of review by which this court is bound, Mother does not
urge this evidence as supportive of her complaint on appeal. Likewise, she does not
rely on her testimony that Father disciplined the children with a wooden spoon and
with “flicks, like, with his thumb and middle finger or forefinger.”
8
Mother had alleged in her affidavit supporting her application for a protective
order that Father had tried to pressure her into sexual intercourse, that she had denied
him, that he had become angry at her rejection, and that he had shouted and verbally

6
Mother testified that when Father reached for her phone, she rolled off the bed

“to get away from the boys”; according to Mother, Father then grabbed her arm and

“reached through” her arm “to try to get the phone from” her. Mother stated,

“[W]hen he got it, he brought it up and hit me across the neck and chin.” The phone

stopped recording when Father took it; after that, he wouldn’t give it back to her. The

trial court admitted photos depicting bruises on Mother’s arm and neck that she said

she had taken the next day after Father had given the phone back to her.

According to Father, he had drunk “no more than three[] whiskeys” that night

and had returned home around 9:30 p.m. He went to sleep in a different bedroom.

Father testified that he woke up around 2:00 a.m. to take some medicine and that

Mother was already awake. She said “hey” to him, so he sat on the end of the bed and

tried to start a conversation. 9 Father claimed that the two had talked there for “at least

two hours”; he described himself as “[a] little frustrated” but denied shouting or being

angry. He explained that he and Mother had made an agreement about recording each

other:

abused her, which prompted her to make the recording. But she did not testify to the
same at the hearing.

In context, Father appeared to intimate that he wanted to start a conversation
9

about reconciliation: he testified that Mother “had told [him] that day again that . . .
now we’re separated” but that they had engaged in “so many conversations where ‘I
forgive you, we’re fully reconciled,’” only for Mother to “change” four to five days
later.

7
I had made some recordings in the past . . . of some less-than of her
finest moments, like we all have, and it would really frustrate and irritate
her. And so we kind of made a rule that we wouldn’t record one another
like that and try to go below the belt and hold it over each other’s head. 10

When asked, “And do you dispute that you were trying to grab the phone?”

Father said, “No.” He denied that he had “lunged” for the phone or struck Mother,

but he did admit that he had reached for the phone with the intent to stop the

recording and that “[s]he [had] started to wrestle the phone away.” He described what

happened as follows:

I’m trying to grab the phone. She’s holding onto it so hard -- she starts
to stand up. I realize she’s not letting this thing go, so I let it go. And the
way she was holding it, she -- it popped her in the chin when she pulled
back. And she goes, “you hit me.” And I said, “I didn’t hit you. The
phone hit you when you pulled it back.”

According to Father, Mother did not leave the room, nor did he restrain her

from leaving. He put the phone on the bedside table. Father denied observing any

bruises or marks on Mother in the days after the confrontation.

When cross-examined about whether he should have known that Mother

“didn’t want [him] in that room,” Father answered, “She was wondering if I wasn’t

leaving because of the frustration, not because she asked -- didn’t ask me to leave.”

He also testified, “She didn’t say she didn’t want me there.”

10
Father’s evidence included a montage of photographs and videos of the
family together. In one of the video clips, he recorded Mother moving from the
backseat of the car to the front seat. She can be seen playfully putting her hand up to
the phone to stop the recording.

8
The video shows only a portion of what both parties testified to. It begins with

Father’s sitting at the foot of the bed, directly in front of the camera and looking

barely awake; his movements are slow and uncoordinated. After a few seconds, he

leans forward slowly, with his hand outstretched. As his hand nears the camera, the

camera shifts; the view turns sideways toward the bed and then to one of the sleeping

children on the bed, as if the phone is being jostled. At that point, the recording ends.

C. Protective-Order Law

Section 81.001 of the Family Code provides that “[a] court shall render a

protective order . . . if the court finds that family violence has occurred.” Tex. Fam.

Code Ann. § 81.001. This finding must be made at the end of a hearing for the

application of a protective order. Id. § 85.001(a). Section 71.004(1) of the Family Code

defines family violence 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 [infliction thereof].” Id. § 71.004(1).

Section 22.01(a) of the Penal Code provides that an assault offense occurs if

the person

(1) intentionally, knowingly, or recklessly causes bodily injury to another,
including the person’s spouse; (2) intentionally or knowingly threatens
another with imminent bodily injury, including the person’s spouse; or
(3) intentionally or knowingly causes physical contact with another when
the person knows or should reasonably believe that the other will regard
the contact as offensive or provocative.

9
Tex. Penal Code Ann. § 22.01(a)(1)–(3). Courts have integrated Section 22.01(a) into

Section 71.004(1)’s definition of family violence, so that a family-violence finding

requires that a person intentionally, knowingly, or recklessly cause bodily injury;

intentionally or knowingly threaten imminent bodily injury; or cause offensive or

provocative physical contact to a family member. See Myers v. Regan,

No. 05-21-00919-CV, 2023 WL 415946, at *2 (Tex. App.—Dallas Jan. 26, 2023,

no pet.) (mem. op.); Dolgener v. Dolgener, 651 S.W.3d 242, 256 (Tex. App.—Houston

[14th Dist.] 2021, no pet.); cf. Fontenot v. Fontenot, 667 S.W.3d 894, 913–14

(Tex. App.––Houston [14th Dist.] 2023, no pet.) (upholding a trial court’s granting of

a Family Code protective order and the finding that the husband committed family

violence against his child by inflicting serious bodily injury or by placing the child in

fear of imminent infliction thereof, according to Section 22.01(a)(1)–(2)); 11

Blevins v. State, No. 02-09-00237-CR, 2010 WL 5395836, at *3 (Tex. App.—Fort

Worth Dec. 30, 2010, pet. ref’d) (mem. op. on reh’g, not designated for publication)

(holding that evidence was sufficient to support criminal conviction under Section

22.01(a)(3) when defendant shoved his wife but did not cause her any pain or injury).

Assault by offensive touching “requires proof that the defendant knew or

should have reasonably believed that the complainant would regard the contact as

11
The Fourteenth Court of Appeals integrated in full the Penal Code Section
22.01 definition of assault to define “assault” in Family Code Section 71.004(1).
Although expressly citing Section 22.01(a)(3) as constituting grounds for a finding of
family violence under Family Code Section 71.004(1), it relied only on Section
22.01(a)(1)–(2) to affirm the protective order. See Fontenot, 667 S.W.3d at 913–14.

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offensive or provocative.” McKithan v. State, 324 S.W.3d 582, 585 (Tex. Crim. App.

2010). As the late Judge Cathy Cochran observed in a concurrence in McKithan, “[t]he

word ‘offensive’ is commonly defined as ‘causing offense, specifically provocation;

irritating; . . . disgusting; giving pain or unpleasant sensations; disagreeable.’ Common

synonyms are ‘displeasing, disagreeable, distasteful, obnoxious, abhorrent, disgusting,

impertinent, rude, saucy, opprobrious, insulting, insolent, abusive, scurrilous.’” Id. at

594 n.1 (Cochran, J., concurring) (quoting Webster’s New Twentieth Century

Dictionary Unabridged 1242 (1979)). And “[t]he word ‘provocative’ is commonly

defined as ‘provoking or tending to provoke’ [while] common synonyms for the verb

provoke are ‘arouse, stir up, rouse, awake, cause, excite, move, induce, incite,

stimulate, inflame, offend, irritate, anger, chafe, exasperate, incense, enrage.’” Id.

(Cochran, J., concurring) (quoting Webster’s New Twentieth Century Dictionary

Unabridged 1450 (1979)). She summed up the difference between bodily-injury assault

and offensive-touching assault as follows:

Physical harm and physical force are entirely different concepts from
mental or moral offensiveness. One damages the body, the other
damages the mind, emotions, or sense of well-being. One is the intent to
cause a physical injury, the other is the intent to cause a psychic injury.
One is ‘ouch,’ the other is ‘yuck.’

Id. at 594 (Cochran, J., concurring) (footnote omitted).

D. Analysis

Mother argues that the trial court reversibly erred by denying her application

for a protective order because all of the evidence was in agreement that the phone

11
struck Mother after Father intentionally attempted to grab it from her and that this

conduct meets the definition of assault in Penal Code Section 22.01(a)(3) as a matter

of law. Mother contends that Father’s grabbing the phone was “an act . . . intended to

result in . . . assault” according to the Penal Code’s non-bodily-injury definition––

“intentionally or knowingly caus[ing] physical contact with another when the person

knows or should reasonably believe that the other will regard the contact as offensive

or provocative.” Tex. Fam. Code Ann. § 71.004; Tex. Penal Code Ann. § 22.01(a)(3).

According to Mother, because Father testified that he intended to grab the phone––

which she says constitutes “physical contact”––our “analysis should hinge on whether

he ‘knew or should have reasonably believed’ that [his] grabbing her phone was

offensive or provocative.” She argues that Father’s failure to simply ask her to stop

recording, instead “jump[ing] straight to physical dominance,” indicates that he knew

or should have known that grabbing the phone to attempt to stop her recording was

offensive or provocative.

For Penal Code purposes, “[k]nowledge may be proven with circumstantial

evidence and inferred from the acts, words, and conduct of the accused.”

Hammack v. State, 622 S.W.3d 910, 915 (Tex. Crim. App. 2021). It is subject to the

same sufficiency standard as other evidence. See, e.g., Laster v. State, 275 S.W.3d 512,

521 (Tex. Crim. App. 2009). And we cannot contravene trial-court determinations of

12
witness credibility.12 See Golden Eagle Archery, 116 S.W.3d at 761; Johnson v. Reed,

No. 14-24-00329-CV, 2025 WL 1742634, at *4 (Tex. App.—Houston [14th Dist.]

June 24, 2025, no pet. h.) (mem. op.) (holding evidence factually sufficient to support

denial of Family Code protective order).

Here, after weighing the testimony and evidence, the trial court could have

found––in the context of all the circumstances surrounding the phone-grabbing

incident, including the video13––that Father did not know, nor should he have known,

that Mother would find that particular contact to be offensive or provocative at that

time. We hold that the evidence does not conclusively prove that Father committed

family violence as a matter of law, nor is it against the great weight and preponderance

of the credible evidence. Thus, we overrule Mother’s sole issue.

12
Mother points to evidence that she contends would cause a reasonable
factfinder to doubt Father’s veracity: a prior judgment for making a false statement to
the SEC and his testimony that although he didn’t recall the night of the alleged
sexual assault, he nevertheless did not sexually assault Mother. Although we agree that
the record contains evidence upon which the trial court could have relied to doubt
Father’s veracity, it does not mean that the trial court was required to believe all of
Mother’s testimony over Father’s. See City of Keller, 168 S.W.3d at 820. As we have
pointed out, the trial court stated on the record that it partially disbelieved both
parties.
13
Our holding should not be read to hold that a person’s grabbing a phone
from someone’s hand can never constitute family violence or that it is insufficient
evidence of such an allegation. Rather, our holding is limited specifically to the facts
of this case in light of the applicable standard of review.

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IV. Conclusion

Having overruled Mother’s sole issue, we affirm the trial court’s denial of

Mother’s application for a protective order.

/s/ Wade Birdwell

Wade Birdwell
Justice

Delivered: August 7, 2025

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