Humberto Fabian Caballero v. Maria Christian Caballero
14-16-00513-CV
Tex. App.Dec 14, 2017Background
- Maria Christian Caballero sought and obtained a two-year family-violence protective order against former husband Humberto Fabian Caballero after a contested hearing; trial court found past family violence and likelihood of future violence and barred him from possession of firearms and from contacting Maria.
- Maria testified to repeated stalking-like conduct (following her to work, apartment, restaurants, and shops), confrontations (banging on car windows, blocking her car), invasive phone calls/emails, and two physical assaults in 2014; she feared escalation.
- Appellant denied assaults and most allegations, admitted some chance encounters and that he sent emails and owned firearms, and asserted continued friendly contact based on certain emails from Maria.
- Trial court credited Maria’s testimony over appellant’s and entered the protective order; appellant appealed raising three issues: burden of proof, insufficient notice of hearing, and legal/factual insufficiency of evidence.
- Appellant did not object at trial to the notice or request a higher burden of proof; the court nonetheless addressed the sufficiency and constitutional arguments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Legal and factual sufficiency of evidence for protective order | Maria: testimony of stalking, confrontations, past assaults, and fear of future violence supports order | Caballero: incidents old or coincidental; lack of corroboration and emails show ongoing friendly contact | Affirmed — evidence (testimony of pattern and past assaults) legally and factually sufficient; factfinder may credit applicant’s testimony |
| Burden of proof required to issue protective order | Maria: (implicit) preponderance standard appropriate for civil protective orders | Caballero: due process requires clear-and-convincing evidence because order may affect parental rights | Rejected — preponderance of evidence is adequate; protective order does not directly terminate parental rights and statute creates only a rebuttable presumption in later custody proceedings |
| Adequacy of 48-hour notice of hearing | Maria: notice followed statutory procedures (no trial objection preserved) | Caballero: 48-hour notice was unreasonable and denied due process | Not preserved — appellant failed to object or request continuance in trial court, so appellate review waived |
Key Cases Cited
- CMH Homes, Inc. v. Daenen, 15 S.W.3d 97 (Tex. 2000) (discusses potential relief and appellate sequencing)
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (legal-sufficiency review and reasonable inferences standard)
- Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778 (Tex. 2001) (more-than-a-scintilla standard)
- Cain v. Bain, 709 S.W.2d 175 (Tex. 1986) (factual-sufficiency review standard)
- Teel v. Shifflett, 309 S.W.3d 597 (Tex. App.—Houston [14th Dist.] 2010) (past pattern can support finding of likely future family violence)
- Roper v. Jolliffe, 493 S.W.3d 624 (Tex. App.—Dallas 2015) (preponderance standard for protective orders is constitutionally adequate)
- Boyd v. Palmore, 425 S.W.3d 425 (Tex. App.—Houston [1st Dist.] 2011) (protective order provisions construed broadly; testimony alone can support order)