Melissa Rae Darvell v. Cameron Hooker Pumphrey

ACCEPTED
15-25-00194-CV
FIFTEENTH COURT OF APPEALS
AUSTIN, TEXAS
1/1/2026 4:20 PM
CHRISTOPHER A. PRINE
CLERK
IN THE FIFTEENTH COURT OF APPEALS OF TEXAS
FILED IN
AT AUSTIN 15th COURT OF APPEALS
AUSTIN, TEXAS
1/1/2026 4:20:41 PM
CHRISTOPHER A. PRINE
Clerk
NO. 15-25-00194-CV

MELISSA RAE DARVELL,
Appellant-Applicant

v.

CAMERON HOOKER PUMPHREY,
Appellee- Respondent

APPEAL FROM THE COUNTY COURT AT LAW THREE
WILLIAMSON COUNTY

APPELLANT’S ORIGINAL BRIEF

GODDARD & HOING, P.C.
By: /s/ Lisa Rasmussen Hoing
Lisa Rasmussen Hoing
1801 Williams Drive
Georgetown, Texas 78628
512.863.2813 (Tel)
512.582.8608 (Fax)
TX SBN 24061028
Attorney for Appellant-Applicant
TABLE OF CONTENTS

TABLE OF CONTENTS .......................................................................................... i

TABLE OF AUTHORITIES .................................................................................. iii

STATEMENT OF THE CASE .................................................................................1

ISSUES PRESENTED ..............................................................................................1

STATEMENT OF JURISDICTION .........................................................................2

STATEMENT OF FACTS........................................................................................2

Background and Parties ....................................................................................... 2

Procedural Posture ............................................................................................... 3

January 23, 2025 Protective Order Hearing ........................................................ 4

June 11, 2025 Protective Order Hearing ............................................................. 8

Testimony of Appellant ................................................................................... 10

Testimony of Child Protective Services Investigator ...................................... 12

July 2, 2025 Protective Order Hearing .............................................................. 13

Testimony of Appellee .................................................................................... 14

Testimony of Law Enforcement ...................................................................... 15

Testimony of Sexual Assault Nurse Examiner ................................................ 16

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Findings .............................................................................................................. 17

SUMMARY OF THE ARGUMENT ......................................................................18

ARGUMENT ..........................................................................................................21

I. THE TRIAL COURT MISAPPLIED CHAPTER 7B BY ELEVATING
THE STATUTORY STANDARD AND IMPROPERLY RELYING ON A
CRIMINAL GRAND JURY NO-BILL.............................................................. 21

Standard of Review and Statutory Framework ............................................... 21

Application to the Record ................................................................................ 22

II. THE TRIAL COURT VIOLATED APPELLANT’S RIGHT TO DUE
PROCESS BY DENYING A MEANINGFUL OPPORTUNITY TO PRESENT
EVIDENCE......................................................................................................... 25

Standard of Review .......................................................................................... 25

Applicable Law ................................................................................................ 25

Application to the Record ................................................................................ 26

REQUESTED RELIEF ...........................................................................................28

PRAYER .................................................................................................................29

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TABLE OF AUTHORITIES

Cases

Bracey v. City of Killeen, 417 S.W.3d 94 (Tex. App.—Austin 2013, no pet.) ...... 21
Caldwell v. State ex rel. Zimmerman, No. 03-22-00464-CV, 2024 Tex. App.
LEXIS 6208, at *15–16 (Tex. App.—Austin Aug. 23, 2024, pet. denied) ........ 22
Goldstein v. Sabatino, 690 S.W.3d 287 (Tex. 2024).............................................. 22
In re B.L.D., 113 S.W.3d 340 (Tex. 2003) ....................................................... 25, 28
In re J.F.C., 96 S.W.3d 256, 274 (Tex. 2002).................................................. 25, 28
In re K.M.L., 443 S.W.3d (Tex. 2014) ................................................................... 25
In re M.S., 115 S.W.3d 534 (Tex. 2003) .......................................................... 25, 28
In re Oates, 104 S.W.3d 571 (Tex. App.—El Paso 2003, no pet.) ........................ 21
Mathews v. Eldridge, 424 U.S. 319 (1976) ............................................................ 25
State v. Gonzalez, 82 S.W.3d 322 (Tex. 2002) ...................................................... 25
Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) .............................................. 21, 24

Statutes

Tex. Code Crim. Proc. art. 7B ......................................................................... passim
Texas Gov't Code § 22.220 ...................................................................................... 5

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STATEMENT OF THE CASE

This is an appeal from an order denying an application for a protective order

under §. The application sought protection based on allegations of sexual conduct

that qualified for protection under Chapter 7B of the Code of Criminal Procedure.

The trial court conducted hearings in Cause 25-0004-POC3 on January 23,

2025, June 11, 2025, and July 2, 2025, in the County Court at Law Number Three

of Williamson County, Texas before the Honorable Doug Arnold. Upon the close

of evidence, the trial court denied Appellant’s requested protective order.

ISSUES PRESENTED

1. Whether the trial court committed reversible legal error by misapplying Chapter

7B of the Texas Code of Criminal Procedure when it denied Appellant’s

application for protective order after elevating the statutory “reasonable

grounds to believe” standard beyond that required by law and improperly

weighing the burden of a criminal grand jury no-bill—contrary to controlling

authority dictating that criminal charging decisions do not govern or preclude

civil protective-order relief.

2. Whether the trial court violated Appellant’s right to due process by denying her

a meaningful opportunity to present evidence in support of her application for

protective order before making substantive rulings affecting child safety and

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possession and access, despite Appellant’s repeated requests to proceed on the

evidentiary merits of her application.

STATEMENT OF JURISDICTION

This Court has jurisdiction over this appeal pursuant to Texas Government

Code § 22.220(a) because the appeal is taken from a final order of a county court

at law located within the Fifteenth Court of Appeals District. The trial court’s

order denying Appellant’s application for protective order is a final appealable

order and Appellant timely perfected this appeal in accordance with the Texas

Rules of Appellate Procedure.

STATEMENT OF FACTS

Background and Parties

On May 21, 2021, a final decree of divorce was entered upon the dissolution of

the marriage of Appellant and Appellee. CR 8-9, 19. The decree included a

parenting plan setting forth a standard possession order regarding J.A.P. and R.L.P.

CR 20-33. Appellant had the right of residency of the children. CR 24. After entry

of the decree, Appellee moved to Florida where he resided with his current wife,

Kardigan Pumphrey. RR 3:53; RR 4:8-9.

Appellee travelled from Florida to Texas to exercise his rights of possession

and access with J.A.P. and R.L.P. RR 4:10. Appellee exercised his visitation at the

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Sleep Inn Hotel in Round Rock, Texas and the Comfort Inn Hotel in Pflugerville,

Texas. RR 4:10.

Prior to January 6, 2025, the parties and their respective spouses maintained a

cooperative co-parenting relationship. RR 3:51-52. They communicated through

group text messages, jointly participated in school and birthday events, and

coordinated travel and visitation. RR 3:51-53.

On January 6, 2025, J.A.P. made an outcry to Appellant about sexual abuse

during her bath. RR 3:53-54. During the bath, Appellant was explaining to J.A.P.

and R.L.P. that boys and girls having different types of “pee-pee’s.” RR 3:54.

J.A.P. was six years old and R.L.P. was four years old. CR 20. J.A.P. described

occurrences of sexual abuse at the hands Appellee. RR 3:54. Appellant reported

J.A.P.’s outcry to law enforcement and Child Protective Services. RR 3:61-62. On

January 9, 2025, Appellant, acting in a pro se capacity, filed an application for

protective order on behalf of J.A.P. and R.L.P. against Appellee. CR 8.

Procedural Posture

This appeal arises from the denial of an application for protective order filed by

Melissa Rae Darvell (hereinafter, “Appellant”) against Cameron Hooker Pumphrey

(hereinafter, “Appellee”) in the County Court at Law Number Three of Williamson

County, Texas on behalf of her children, J.A.P. and R.L.P.

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January 23, 2025 Protective Order Hearing

On January 23, 2025, the trial court conducted a hearing on Appellant’s

application. RR 2:4. The trial court inquired whether there was a continuing

investigation of the outcry. RR 2:4. Appellant confirmed there was a criminal and

a Child Protective Services (hereinafter, “CPS”) investigation pending. RR 2:4.

The trial court advised Appellant, “So, typically, we let these investigations

play out before we proceed with a protective order because one could interfere

with the other. Does that make sense?” RR 2:4. Appellant advised the trial court

that CPS and the county attorney’s office advised her to go to the hearing for the

protective order because she could obtain relief sooner than waiting on the county

attorney’s office. RR 2:5. The trial court asked Appellant, “So, what evidence do

you have to support the allegations?” RR 2:5. Appellant advised a forensic

interview, a medical interview, and interviews with law enforcement and CPS had

occurred. RR 2:6. Appellant advised she had a drawing her child made and video

evidence that was not within her possession. RR 2:6. The trial court responded,

“So, you're not really prepared to go forward on the merits today, is that right?”

RR 2:6. Appellant attempted to respond. RR 2:6. The trial court asked whether

Appellee had been served. RR 2:6. Appellant responded there were two failed

attempts. RR 2:6. The trial court advised Appellant the hearing couldn’t go

forward unless Appellee had been served and questioned whether Appellant

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wanted to “press forward at this time” in light of an ongoing investigation because

any evidence introduced at a protective order hearing could interfere with the

criminal investigation. RR 2:6. The trial court advised Appellant it is customary

for the protective order to issue after the investigation is complete. RR 2:7.

Appellant expressed concerns that Appellee still had possession and access rights

to J.A.P. and R.L.P. and she was frightened he could take them from school. RR

2:7. The trial court stated it couldn’t give Appellant legal advice, RR 2:7, but that

it did not want to “move forward” because it could interfere with the criminal

investigation. RR 2:8. Upon determining the county attorney had not “taken the

case up,” the trial court stated, “So, if they’re waiting, does that tell you something

about this case? That maybe it’s premature to go forward on the merits?” RR 2:8.

The trial court continued with the following exchange:

Court: So, we can just let this kind of sit until there’s movement on the
criminal case or the county attorney picks it up.

Appellant: Okay.

Court: It won’t prejudice you in any way. It won’t hurt your chances in
the long run.

Appellant: Okay.

Court: If you move forward and there’s not enough evidence, then I
might have to deny it. That could be a problem.

Appellant: Okay. I do –

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Court: See, in other words, the county attorney knows what evidence
to present. They’re well-versed in all that. It sounds like you
just have a few things here today. You’re not really fully ready
to go with the full evidence.

Appellant: Okay.

Court: Because it hasn’t been developed yet. Does that make sense?

Appellant: Yes.

Court: So, perhaps what we should do is let this sit for the time being,
let the criminal investigation, let CPS move forward, let the
county attorneys decide if they’re going to pick it up, and then
if there’s been an arrest, if the county attorneys have picked it
up, you’ve got a lot more momentum.

Appellant: Okay.

Court: Does that make sense?

Appellant: Yes, Your Honor.

Court: So, we might just let it ride for now.

Appellant: Okay…

Court: … when there’s movement, meaning there’s been an arrest, or
if the county attorneys pick it up, we’ll hear it from them.

Appellant: Okay.

Court: But it might be a little premature to go forward today. First of
all, you haven’t served him, so I can’t really go forward.

Appellant: Okay.

Court: But even if you had, there are things that haven’t been
developed yet.

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Appellant: Okay.

Court: Does that make sense?

Appellant: Yes, Your Honor.

Court: So, we’re not going to hear anything today. If you want to work
on serving him, you can, but it sounds like these wheels just
grind somewhat slowly, but it takes time for the investigation to
get going and for things to play out.

Appellant: Okay.

Court: So, I’m not going to make any decision today either way.

Appellant: Okay.

Court: We’re going to let things happen with CPS and with law
enforcement.

Appellant: Okay.

Court: Right?

Appellant: Yes.

Court: And if the county attorneys pick up it, then they’ll come see
me, and we’ll get another setting.

Appellant: Okay. RR 2:8-11.

The trial court did not grant or deny Appellant’s Application for Protective

Order. RR 3:15.

On May 12, 2025, Appellant, represented by counsel, filed a first-amended

application for protective order requesting relief in the form of a temporary ex

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parte order and a final protective order. CR 64-71. The trial court did not grant or

deny relief on Appellant’s May 12, 2025 request for a temporary ex parte order,

nor did it grant it. RR 3:15.

June 11, 2025 Protective Order Hearing

On June 11, 2025, the trial court conducted the second hearing on Appellant’s

application for protective order. RR 3:4. The trial court announced it was set for

Appellant’s Application for Protective Order and a hearing on Appellant’s petition

to modify.1 RR 3:4. Appellant requested that the trial court proceed on the

protective order first. RR 3:4. The trial court requested a proposed order from

Appellant. RR 3:4. Appellant advised the proposed order had been filed. RR 3:4.

The trial court refused to hear evidence unless it had a physical copy of the

proposed order. RR 3:5. The trial court advised it would take up Appellant’s

motion for temporary orders on the modification petition instead. RR 3:5.

During Appellant’s opening statement on the temporary orders, the trial court

questioned Appellant about evidence, and made findings concerning: 1) facts not

yet offered or received into evidence; 2) the number and identity of permissible

outcry witnesses; 3) the role and admissibility of testimony from the Williamson

County Children’s Advocacy Center (hereinafter, “CAC”); 4) CPS witnesses, and

1
Appellant had also filed a Petition for Modification of the parties’ 2021 Divorce Decree in
Cause 21-0460-FC3.

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5) the relevance of law-enforcement testimony, despite no objections raised and no

evidence offered or admitted. RR 3:7–10, 14–15.

Additionally, the trial court made several references to the grand jury and its

actions on the criminal case:

• “And that was the accusation that was no-billed by the grand jury?” RR
3:10.

• “You’re looking at this broader than what was presented with grand jury;
is that what you’re saying?” RR 3:11.

• “Was there another charge involving the video that was presented to the
grand jury?” RR 3:16.

• “Sure, but that wasn’t a discrete charge no-billed by the grand jury.
That’s the point I was trying to make earlier.” RR 3:16.

• “Ok. So, I’ve got a case that was no-billed by a grand jury, presented to a
grand jury and no-billed. Tell me why I shouldn’t allow him to have
supervised access?” RR 3:23.

The trial court suggested the appointment of an amicus attorney and explained

how the appointment would assist the trial court prior to making a definitive ruling

regarding Appellee’s contact with the children. RR 3:18-19. The parties agreed to

the appointment of an amicus. RR 3:18-19.

Appellee requested interim visitation. RR 3:20. Appellant objected and

requested that the trial court allow her to present evidence before ruling on

Appellee’s request for interim possession and access. RR 3:23. After denying

Appellant the ability to offer evidence, the trial court ordered supervised contact

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between Appellee and R.L.P. RR 3:23. Appellant renewed her request that the trial

court hear evidence prior to making its finding granting interim supervised

visitation of R.L.P. RR 3:25. The trial court denied Appellant’s request. RR 3:26.

Appellant renewed her request to adduce evidence. RR 3:27. The trial court denied

Appellant’s request. RR 3:27. Appellant renewed her request to adduce evidence.

RR 3:29. The trial court denied her request. RR 3:30.

Appellant requested that the trial court take up the protection order hearing. RR

3:38. The trial court asked Appellant, “Are you sure you want to go forward on

this now… the timing seems pretty significant here?” RR 3:40. Appellant advised

the trial court she desired to move forward with the protection order hearing. RR

3:40. The trial court characterized Appellant’s request for a lifetime protective

order as a de facto termination of parental rights. RR 3:45-46.

Testimony of Appellant

Appellant testified that on January 6, 2025, she was giving J.A.P. and R.L.P. a

bath while discussing the fact that boys and girls have different “pee-pees.” RR

3:50. J.A.P. was six years old and R.L.P. was four years old. RR 3:49. J.A.P.

announced she had seen a boy’s “pee-pee” because she slept in bed with her

daddy who didn’t wear undies. RR 3:53-55. J.A.P. told Appellant she touched

her daddy’s “pee-pee” on multiple occasions using her hands and her

feet, RR 3:55, and t h at h er d ad dy t old he r, “ T hat f eel s go o d. ” RR 3:56.

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J.A.P. told Appellant her daddy played tickle monster with her wearing only a shirt

and no “undies.” RR 3:61. J.A.P. told Appellant she and her daddy watched videos

of people drinking milk out of “pee-pees” when they were in bed. RR 3:56. J.A.P.

said her daddy took her into the hotel bathroom, removed her pants and her

panties, rubbed her “pee-pee,” and told her it was their secret. RR 3:56.

J.A.P. told Appellant she watched videos of little boys and little girls

touching their daddy’s “ pee-pee” and drinking milk out of their daddy’s “pee-

pee” on the computer. RR 3:57-58. J.A.P. told Appellant her daddy told her he

wanted her to drink his “pee-pee” like they do in the videos. RR 3:59. J.A.P. told

Appellant her daddy touched her and she drank her daddy’s “pee-pee” in the

bathroom. RR 3:58. J.A.P. told Appellant that, if she didn’t do the “private stuff,”

her daddy would ground her from her toys and Nintendo Switch and

pointed to her vagina. RR 3:59, 70. J.A.P. told Appellant her daddy told her that

if she didn’t do it this time, she would have to do it next time. RR 3:59. J.A.P. told

Appellant her daddy would count back from five and ground her if she didn’t do

the “private stuff.” RR 3:59. J.A.P. told Appellant she watched a video of naked

“Kardi” drinking milk out of her daddy’s “pee-pee” while wearing a leash or chain

around her neck. RR 3:60. J.A.P. told Appellant she believes her daddy will do it

again. RR 3:61.

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Testimony of Child Protective Services Investigator

Shirley Flowers (hereinafter, “Flowers”) testified she was the CPS investigator

assigned to J.A.P.’s case. RR 3:81. As part of her investigation, Flowers

interviewed J.A.P., Appellee, and Appellee’s wife, Kardigan Pumphrey. RR 3:82;

4:97. Flowers interviewed J.A.P. on January 7, 2025. RR 3:82. J.A.P. told Flowers

that when she sleeps in bed with her daddy her daddy has no panties on and she

can feel his pee-pee touching her. RR 3:84. J.A.P. told Flowers her daddy touched

her “pee-pee” and made her touch his “pee-pee.” RR 3:84. Flowers testified,

“[J.A.P.] had seen a video of him and his wife doing adult activities where the wife

wears an adult leash on - sucking milk from her peepee - from his peepee.” RR

3:84. J.A.P. told Flowers that, while she was in the bathroom, her daddy pulled her

pants down and asked her to drink milk from his peepee. RR 3:84. Later, during

Flowers’ direct examination, Flowers testified J.A.P. told her that her daddy made

her drink milk from his peepee. RR 3:87. J.A.P. told Flowers she told her daddy

she didn’t want to do it. RR 3:87. J.A.P. told Flowers R.L.P was present during the

events and “Kardi” was outside smoking or asleep. RR 3:82, 88, 99. J.A.P. drew

Flowers a picture of J.A.P.’s hand on her daddy’s penis. RR 3:82.

Flowers testified she interviewed Kardigan Pumphrey. 3:82; 4:97. Kardigan

Pumphrey confirmed the existence of the “dog collar and leash” sex video on hers

and her husband’s cell phones. RR 3:89, 96. Kardigan Pumphrey confirmed J.A.P.

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would need the passcode to the phone to be able to see the video and that even if

J.A.P. were able to get through the passcode, she would still have to know where

to look for the sex video. RR 3:97. Kardigan Pumphrey told Flowers Appellee told

her J.A.P. walked in on him masturbating in the bathroom while he was watching

the video. RR 3:97. Kardigan Pumphrey told Flowers she travelled with Appellee

only when it was financially feasible. RR 3:100.

Flowers testified she interviewed Appellee. 3:82; 4:97. Appellee confirmed the

existence of the “dog collar and leash” sex video involving he and his wife. RR

3:89. Appellee told Flowers he may have been watching the video while J.A.P.

was laying on the bed. RR 3:89, 95-96. Appellee stated the “dog collar and leash”

sex video was on his phone. RR 3:89. Appellee said that, outside of watching the

video on the bed, he didn’t know how J.A.P. saw it. RR 3:96. Appellee confirmed

his phone was password protected. RR 3:96. Appellee told Flowers that Kardigan

Pumphrey is with him 99% of the time he travels to Texas to visit J.A.P. and

R.L.P. RR 3:100.

The trial court recessed the hearing and continued it to July 2, 2025. RR 3:100-

103.

July 2, 2025 Protective Order Hearing

On July 2, 2025, the Court conducted the continued hearing on Appellant’s

application for protective order. RR 4:4-120.

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Testimony of Appellee

Appellee testified he was granted standard possession and access of J.A.P. and

R.L.P. after his divorce from Appellant. RR 4:9. Appellee testified he moved to

Florida and came to Texas approximately every two weeks to exercise his

visitation with J.A.P. and R.L.P. in hotel rooms. RR 4:9, 28-29. Appellee

confirmed he stayed at the Sleep Inn hotel in Round Rock and the Comfort Inn

hotel in Pflugerville, Texas. RR 4:10. Appellee identified Petitioner’s Exhibits 1,

2, and 3 as being an accurate depiction of the hotel room where he stayed with

J.A.P. and R.L.P. in 2024. RR 4:13-14.

Appellee confirmed he was in possession of a sex video where Kardigan

Pumphrey was giving him oral sex while wearing a dog collar and leash. RR 4:15-

16, 21-22. Appellee testified that, after J.A.P. and R.L.P. were asleep, he went into

the bathroom to take a shower. RR 4:34. Appellee confirmed he was alone with

J.A.P. and R.L.P. in the hotel room. RR 4:34. Appellee testified he was

masturbating in the hotel bathroom to the “dog collar and leash” video when J.A.P.

opened the door. RR 4:34. Appellee testified he believed J.A.P. must have seen the

dog collar and leash video through the reflection in the bathroom mirror. RR 4:23.

Appellee admitted he enjoyed engaging in risky sexual behavior. RR 4:26.

Appellee testified J.A.P. had grabbed his penis when she was younger but denied

any sexual intent or encouragement. RR 4:24. Appellee testified he was arrested on

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the criminal case related to this protective order application and an emergency

protective order was in place for ninety days. RR 4:35-36. Appellee testified that

after criminal case was “no-billed,” he drove to Texas several times to exercise

possession and access of J.A.P. and R.L.P. RR 4:36.

Testimony of Law Enforcement

Detective Limary Cardella (hereinafter, “Cardella”) testified she was an Austin

Police Department detective assigned to the criminal case. RR 4:58. Cardella

interviewed Appellee in January of 2025. RR 4:58-59. Appellee told Cardella he

was in good standing with his Appellant. RR 4:59. Appellee told Cardella he was

at a hotel room in Round Rock, Texas when J.A.P. walked in on him masturbating

while sitting on the toilet watching a sex video of he and his current wife. RR 4:59-

60. Appellee told Cardella he believed J.A.P. saw the sex video through the mirror

when she came in the bathroom. RR 4:60.

Officer Sean Randolph (hereinafter, “Randolph”) testified he was a Round

Rock Police Department detective assigned to the criminal case. RR 4:39.

Randolph set up the appointment for a forensic interview of J.A.P. with the CAC.

RR 4:40. Randolph testified he investigated the hotels where Appellee, J.A.P., and

R.L.P. stayed in 2024. RR 4:40-41. Randolph testified Petitioner’s Exhibits 1, 2,

and 3 were an accurate depiction of the hotel room he inspected. RR 4:42.

Randolph testified he was suspicious of Appellee’s explanation “[b]ecause where

15
the toilet was placed and where the mirror was located, it was almost impossible. I

actually sat down on the toilet myself and played a video on my phone just to see.

It was almost impossible for anybody, even a six-year-old small child, to see a

video in a phone if you’re sitting down on the toilet watching it or seeing it in the

mirror.” RR 4:43.

Testimony of Sexual Assault Nurse Examiner

Erin Miller (hereinafter, “Miller”) testified she was a licensed and certified

forensic nurse practitioner employed with the Williamson County Children’s

Advocacy Center. RR 4:66. Miller testified she performed a medical exam on

J.A.P. on January 14, 2025. RR 4:68. Miller testified J.A.P. was in good health and

developmentally appropriate. RR 4:68. Miller testified she and J.A.P. were alone

during the examination. RR 4:68. J.A.P. told Miller she had seen her dad’s “pee-

pee,” his “private part,” before. 4:70. J.A.P said she and her dad were at a hotel and

she touched it with her hand. RR 4:70. J.A.P. demonstrated a gripping motion with

her hand to explain to Miller how she touched her dad’s penis under his clothes.

RR 4:70. J.A.P. told Miller her dad’s shirt was on, but that he took off his

underwear. RR 4:70. J.A.P. told Miller her dad said, “That feels good” when she

touched his “pee-pee” with her hand. RR 4:70. J.A.P. said her dad showed her

videos of adults and kids doing things with private parts different than what they

did. RR 4:70. Miller testified J.A.P. told her about a time she and her dad were in a

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hotel and he sat down on the toilet with the lid closed, took her pants off, and told

her it was a secret and she couldn't tell anyone. RR 4:70. J.A.P. said she told him

she didn’t want to do that and he said, “okay” and put her pants back on. RR 4:70.

Miller testified J.A.P.’s behavior was consistent with children who have

suffered abuse. RR 4:70. Miller testified J.A.P. was very detailed in her answers.

Miller testified that J.A.P. requested a piece of paper during the exam and drew

pictures as she talked to Miller about what occurred. RR 4:70. J.A.P. told Miller

she and her dad were on the bed and drew a picture of the bed. RR 4:70-71 J.A.P.

drew Miller a picture of a toilet and demonstrated that the lid was closed. RR 4:71.

J.A.P. drew Miller a picture of videos she watched with her dad that depicted

adults and children doing things with “private parts.” RR 4:71. Miller testified

J.A.P.’s demeanor was very matter of fact during the examination and an

appropriate demeanor for a six-year-old who is just telling the story of exactly

what happened. RR 4:71.

Findings

The trial made a statement that it found the law enforcement and medical

witnesses to be credible. RR 4:108.

The trial court determined that “reasonable grounds to believe” should be

analogized to “preponderance of the evidence” as the burden standard for a

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protective order under Tex. Code of Crim. Proc. art. 7B. RR 4:97 (hereinafter,

“Chapter 7B”).

The trial court denied Appellant’s Application for Protective Order and made

findings there were no reasonable grounds to believe Appellee committed family

violence, dating violence, or child abuse, or one of more of the following offenses

against either of the applicants: sexual assault or abuse, indecent assault, indecency

with a child, stalking, or trafficking, or any other ground necessary for the granting

of a protective order under Tex. Code of Crim. Proc. art. 7B.003. CR 198-201; RR

4:115.

The trial court reasoned that, because the grand jury’s no-bill was for the

criminal offense of Indecency with a Child, the court could not logically find

reasonable grounds to believe the offense of Indecency with a Child occurred by a

preponderance of the evidence because the grand jury’s burden of probable cause

was a lower burden than preponderance of the evidence. RR 4:103-115.

SUMMARY OF THE ARGUMENT

This appeal arises from the trial court’s denial of Appellant’s application for a

protective order under Tex. Code Crim. Proc. art. 7B (hereinafter, “Chapter 7B”).

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The trial court’s denial rests on legal error and denial of due process, an abuse of

discretion—and each of which independently requires reversal.

First, the record demonstrates the trial court misapplied Chapter 7B by (a)

elevating the statutory “reasonable grounds to believe” standard beyond that

required by law, and (b) improperly weighing the existence of a collateral criminal

grand jury no-bill in its civil protective order analysis. Chapter 7B establishes a

protective framework intended to prevent future harm, not to adjudicate criminal

guilt. Nevertheless, the trial court concluded an extra-judicial factfinder’s decision

not to return a criminal indictment led the trial court to decline to apply it from

finding reasonable grounds to believe the offense of Indecency with a Child

occurred. That reasoning conflicts with controlling authority recognizing that

criminal charging decisions do not govern or preclude civil protective order relief

and reflects a fundamental misapplication of the governing statute.

Second, the trial court violated Appellant’s right to due process by denying her

a meaningful opportunity to present evidence in support of her application before

making substantive rulings affecting child safety, possession, and access. The

record reflects Appellant repeatedly requested to proceed on the evidentiary merits

of her protective order application. The trial court denied or ignored those requests

19
and instead entered interim rulings and findings, sua sponte, on substantive issues

directly affecting the safety of the children.

The record reflects a consistent pattern in which the trial court declined to

exercise its statutory responsibility to decide Appellant’s application for protective

relief on the evidence before it. At the initial hearing—when Appellant appeared

pro se—the court advised Appellant the matter should await criminal

developments and assured her that delaying a merits determination would not

prejudice her request. RR 2:4, 6–11. The same reluctance persisted in subsequent

hearings, where the court repeatedly emphasized external considerations, including

criminal proceedings and the involvement of an amicus attorney, rather than

adjudicating the application under Chapter 7B. RR 3:10–11, 16, 18–19, 23; RR

4:103–115. The trial court’s characterization of a lifetime protective order as a “de

facto termination” further underscores its resistance to applying the statutory

framework as written. RR 3:45–46.

Chapter 7B does not authorize a trial court to defer or outsource its obligation

to determine whether reasonable grounds exist. Because the trial court applied the

wrong legal standard, denied Appellant a meaningful opportunity to present

evidence, and reached a conclusion unsupported by the evidentiary record, the

20
order denying the application for a protective order should be reversed and the case

remanded for further proceedings consistent with Chapter 7B.

ARGUMENT

I. THE TRIAL COURT MISAPPLIED CHAPTER 7B BY ELEVATING
THE STATUTORY STANDARD AND IMPROPERLY RELYING ON
A CRIMINAL GRAND JURY NO-BILL

Standard of Review and Statutory Framework

Statutory interpretation presents a question of law reviewed de novo. Bracey v.

City of Killeen, 417 S.W.3d 94, 103 (Tex. App.—Austin 2013, no pet.). A trial

court has no discretion in determining what the law is or in applying the law to the

facts; when a court misinterprets or misapplies governing law, it abuses its

discretion. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992); In re Oates, 104

S.W.3d 571, 575 (Tex. App.—El Paso 2003, no pet.).

Chapter 7B governs applications for protective orders arising from certain

criminal offenses, including indecency with a child under Texas Penal Code

section 21.11. Tex. Code Crim. Proc. art. 7B.001. The statute requires a trial court

to grant a protective order if it determines there are reasonable grounds to believe

the respondent committed one of the enumerated offenses. Tex. Code Crim. Proc.

art. 7B.003.

21
Chapter 7B protective order proceedings are civil in nature. Caldwell v. State ex

rel. Zimmerman, No. 03-22-00464-CV, 2024 Tex. App. LEXIS 6208, at *15–16

(Tex. App.—Austin Aug. 23, 2024, pet. denied), cert. denied, 2025 U.S. LEXIS

4101 (2025). Although Chapter 7B authorizes protective relief based on conduct

that would qualify as a Penal Code offense, such proceedings are not prosecutions

for the underlying offense. Id.; see also Goldstein v. Sabatino, 690 S.W.3d 287,

291–92 (Tex. 2024). The purpose of a Chapter 7B protective order is not punitive,

but protective—designed to prevent future harm to the applicant and members of

the applicant’s family or household. Tex. Code Crim. Proc. art. 7B.005(a)(1).

Accordingly, Chapter 7B requires a trial court to apply the statutory “reasonable

grounds to believe” standard—distinct from criminal charging standards—and to

grant protective relief when that standard is satisfied.

Application to the Record

The trial court elevated the statutory standard and misapplied Chapter 7B. The

record demonstrates the trial court did not apply the statutory “reasonable grounds

to believe” standard required by Chapter 7B. Instead, the court repeatedly treated

the existence and outcome of a criminal grand jury proceeding as a controlling

benchmark, importing a criminal charging framework into a civil protective order

determination.

22
At the June 11, 2025 hearing, the trial court repeatedly referenced the grand

jury’s no-bill while addressing whether protective relief was appropriate. The trial

court asked, “And that was the accusation that was no-billed by the grand jury?”

RR 3:10. It then stated, “You’re looking at this broader than what was presented

with grand jury; is that what you’re saying?” RR 3:11. The trial court returned to

the same theme by asking, “Was there another charge involving the video that was

presented to the grand jury?” RR 3:16. Later, the trial court framed its analysis by

stating, “Ok. So, I’ve got a case that was no-billed by a grand jury… Tell me why I

shouldn’t allow him to have supervised access?” RR 3:23; RR 4:103–115.

This criminal law lens was evident from the outset. At the January 23, 2025

hearing, the trial court advised Appellant, “So, typically, we let these

investigations play out before we proceed with a protective order because one

could interfere with the other.” RR 2:4. The trial court suggested the matter was

“premature to go forward on the merits” based on the county attorney’s inaction

and repeatedly stated it did not want to “move forward” because doing so could

interfere with the criminal investigation. RR 2:6–8. These statements reflect that

the trial court conditioned its Chapter 7B analysis on the status of the criminal case

rather than determining whether reasonable grounds to believe existed under the

statute.

23
When the matter returned on June 11, 2025, Appellant requested that the trial

court proceed on her application for protective relief. RR 3:40. Rather than

applying the statutory standard, the court questioned the timing of the request and

raised concerns about the consequences of granting protective relief. RR 3:40–41,

45–46. In the same exchange, the court discussed appointing an amicus attorney

and characterized Appellant’s request for a lifetime protective order as a “de facto

termination of parental rights.” RR 3:45–46. These considerations also fall outside

the statutory framework governing Chapter 7B relief.

From the initial hearing through the July 2, 2025 proceedings, the trial court

systematically substituted criminal charging outcomes and collateral

considerations for the statutory inquiry mandated by Chapter 7B. By elevating the

evidentiary threshold beyond “reasonable grounds to believe” and treating a

criminal no-bill as dispositive, the court applied an incorrect legal standard.

A trial court abuses its discretion when it misinterprets or misapplies governing

law. Walker, 827 S.W.2d at 839. Because the trial court misapplied Chapter 7B, its

denial of Appellant’s application constitutes an abuse of discretion. The order must

therefore be reversed and the cause remanded for application of the correct

statutory standard.

24
II. THE TRIAL COURT VIOLATED APPELLANT’S RIGHT TO DUE
PROCESS BY DENYING A MEANINGFUL OPPORTUNITY TO
PRESENT EVIDENCE

Standard of Review

Whether a trial court afforded a party due process presents a question of law

reviewed de novo. State v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002); In re

K.M.L., 443 S.W.3d 101, 112 (Tex. 2014).

Applicable Law

Due process requires, at a minimum, notice and a meaningful opportunity to be

heard at a meaningful time and in a meaningful manner. Mathews v. Eldridge, 424

U.S. 319, 333 (1976); In re B.L.D., 113 S.W.3d 340, 352 (Tex. 2003).

A trial court violates due process when it prevents a party from presenting

evidence material to the issues before the court. In re J.F.C., 96 S.W.3d 256, 274

(Tex. 2002); In re M.S., 115 S.W.3d 534, 549 (Tex. 2003).

A litigant must be afforded a fair opportunity to develop and present evidence

before the court renders substantive rulings affecting that party’s rights. In re

K.M.L., 443 S.W.3d at 112.

25
Application to the Record

The record reflects the trial court did not afford Appellant a meaningful

opportunity to present evidence in support of her application for protective relief.

During Appellant’s hearing on January 23, 2025, the trial court discouraged

presentation of evidence and declined to reach the merits of the application,

advising it did not want to “hear anything today” and that it was “not going to

make any decision today either way.” RR 2:8–11. The trial court neither granted

nor denied Appellant’s application, nor did it provide a setting for a merits hearing.

RR 3:15.

At Appellant’s hearing on June 11, 2025, the trial court announced it had two

matters before it concerning Appellant – a motion for further temporary orders on

a petition to modify and a protective order application. RR 3:4. Appellant

requested that the trial court take up the protective order application first. RR 3:4.

The trial court declined to do so because it did not have a physical copy of

Appellant’s proposed order and stated it would not hear evidence without one; RR

3:4-5, as a result, the trial court proceeded on temporary orders. RR 3:5. During

Appellant’s opening statement—the trial court made findings concerning evidence

not yet offered, determined the number and identity of permissible outcry

witnesses, assessed the relevance of law-enforcement testimony, and addressed the

grand jury’s actions, all before hearing any evidence. RR 3:7–11, 14–16.

26
The record reflects that throughout the second and third hearings, the trial court

continued to defer a merits determination on the protective order while addressing

collateral considerations and making substantive rulings affecting the parties and

the child. RR 3:18–19, 23, 25–30. When Appellee requested interim visitation,

Appellant repeatedly requested permission to present evidence before the trial

court ruled on Appellee’s request. RR 3:23, 25, 27, 29. Each request Appellant

made was denied. RR 3:23, 26, 27, 30.

It is evident from the record that Appellant was not afforded a fair opportunity

to develop and present the evidence material to the Chapter 7B application prior to

the court ruling that Appellee would have contact with R.L.P. RR 3:23. After the

trial Court granted Appellee’s request for possession and access with R.L.P.,

Appellant renewed her request to proceed on her application for protective order.

RR 3:40. The trial court continued to resist reaching a merits determination and

asked, “Are you sure you want to go forward on this now… the timing seems

pretty significant here.” RR 3:40. The trial court continued to raise concerns about

the timing on Appellant’s request and the burden on Appellee of granting

Appellant’s requested protective relief. RR 3:42-46.

When a trial court’s actions prevent the development of the evidentiary record

on a claim, the reviewing court cannot assess the effect of the excluded evidence.

27
In re M.S., 115 S.W.3d 534, 549 (Tex. 2003); In re K.M.L., 443 S.W.3d 101, 119

(Tex. 2014). In such circumstances, the denial of the opportunity to present

evidence constitutes reversible error. In re M.S., 115 S.W.3d at 549; In re K.M.L.,

443 S.W.3d at 119.

Because the trial court denied Appellant a meaningful opportunity to present

evidence in support of her application for protective relief before rendering

substantive rulings affecting child safety and possession and access, the

proceedings failed to comport with due process. In re B.L.D., 113 S.W.3d at 352;

In re J.F.C., 96 S.W.3d at 274. Reversal is required.

REQUESTED RELIEF

Because the trial court applied an incorrect legal standard in denying

Appellant’s application for protective relief under Chapter 7B and conducted the

proceedings in a manner inconsistent with due process, the order denying the

application cannot stand. Appellant respectfully requests that this Court reverse the

trial court’s order denying the application for protective order and remand the

cause to the trial court for further proceedings consistent with this Court’s opinion

and the governing statutory and constitutional requirements.

Appellant requests all further relief to which she may be justly entitled.

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PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellant respectfully prays

that this Court reverse the trial court’s order denying Appellant’s application for

protective order and remand this cause to the trial court for further proceedings

consistent with this Court’s opinion and applicable law, and for such other and

further relief to which Appellant may be justly entitled.

29
CERTIFICATE OF SERVICE

I, Lisa Rasmussen Hoing, hereby certify that on this the 1st day of January,
2026, this Original Brief of Appellant was served via ECF to:

Jaynie N. Badgett
Counsel for Appellee-Respondent

GODDARD & HOING, P.C.

By: /s/ Lisa Rasmussen Hoing
Attorney for Appellant-Applicant

CERTIFICATE OF COMPLIANCE

Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I certify that
this Original Appellant’s Brief complies with the applicable word limit. According
to the word-count function of Microsoft Word, the brief contains 15,000 words,
excluding the portions of the brief exempted by Texas Rule of Appellate Procedure
9.4(i)(1).

GODDARD & HOING, P.C.

By: /s/ Lisa Rasmussen Hoing
Attorney for Appellant-Applicant

30
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.

Envelope ID: 109590474
Filing Code Description: Brief Not Requesting Oral Argument
Filing Description: Appellant's Original Brief
Status as of 1/2/2026 7:18 AM CST

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Jaynie Badgett 24093912 jaynie@coferconnelly.com 1/1/2026 4:20:41 PM NOT SENT

Lisa Hoing lrh@goddardhoing.com 1/1/2026 4:20:41 PM NOT SENT