Fusilier v. State of Texas ex rel. Galloway, 04-25-00125-CV, March 18, 2026.
On appeal from the 288th Judicial District Court, Bexar County, Texas.
Synopsis
The Fourth Court of Appeals affirmed the issuance of a protective order, holding that a complainant’s detailed testimony alone provides legally and factually sufficient evidence of family violence. Crucially, the court ruled that a subsequent criminal acquittal involving the same incident does not require the dissolution of a civil protective order due to the differing standards of proof and the distinct purposes of the two proceedings.
Relevance to Family Law
For the Texas family law practitioner, Fusilier reinforces the formidable nature of protective orders and the extreme difficulty of overturning them on appeal. The opinion clarifies that the "dual-track" system of criminal and civil litigation remains strictly segregated: a "not guilty" verdict in a criminal courtroom—governed by the "beyond a reasonable doubt" standard—does not collaterally estop or otherwise invalidate a civil court’s finding of family violence under a "preponderance of the evidence" standard. In the context of divorce and SAPCR litigation, this means that a protective order can continue to influence conservatorship and access under Texas Family Code § 153.004 even if the respondent successfully defends the related criminal charges.
Case Summary
Fact Summary
The trial court signed a protective order against Joshua Fusilier following an evidentiary hearing where the complainant, Valencia Galloway, testified regarding a specific instance of violence and a history of domestic turbulence. Galloway testified that Fusilier forced himself on her while she attempted to defend herself, eventually throwing her onto a bed and wrestling with her until police arrived. The testimony established that the parties' children were present and that the daughter was the one who alerted authorities. Fusilier appealed the order, contending that the evidence was insufficient because it was purportedly based solely on his arrest and arguing that his subsequent acquittal in the related criminal case necessitated the dissolution of the protective order.
Issues Decided
- Was the evidence legally and factually sufficient to support the trial court’s finding of family violence?
- Does a criminal acquittal for the same underlying conduct require the dissolution of a civil family violence protective order?
Rules Applied
- Tex. Fam. Code § 85.001: Mandates the issuance of a protective order if the court finds family violence occurred and is likely to occur in the future.
- Pena v. Garza, 61 S.W.3d 529 (Tex. App.—San Antonio 2001, no pet.): Establishes that the trial court is the sole judge of the weight and credibility of the witnesses in a protective order proceeding.
- Roper v. Jolliffe, 493 S.W.3d 624 (Tex. App.—Dallas 2015, pet. denied): Clarifies that protective orders are preventive civil measures, not punitive criminal ones, and are governed by the preponderance of the evidence standard.
- Amir-Sharif v. Hawkins, 246 S.W.3d 267 (Tex. App.—Dallas 2007, pet. dism’d w.o.j.): Confirms that protective order applications are civil matters.
Application
The court first addressed the sufficiency of the evidence. While the appellant argued the finding was based only on his arrest, the record revealed specific, detailed testimony from the complainant regarding the physical struggle and the fear experienced by both her and the children. Applying the standard of review, the court noted that it must view the evidence in the light most favorable to the finding. Because the trial court chose to believe the complainant’s account, and because that testimony constituted more than a scintilla of evidence, the appellate court refused to disturb the credibility determination. Regarding the effect of the criminal acquittal, the court focused on the "standards of proof" distinction. A criminal acquittal does not represent a finding of innocence, but rather a failure of the State to meet the "beyond a reasonable doubt" burden. Because a protective order is a civil remedy designed to prevent future violence rather than punish past acts, the lower "preponderance of the evidence" standard applies. Consequently, the two results are not legally inconsistent; a respondent can be civilly liable for family violence even if the State cannot prove the elements of a crime to a criminal jury's satisfaction.
Holding
The Court held that the complainant’s testimony regarding the underlying incident and the history of the relationship was legally and factually sufficient to support the trial court’s family violence finding, as the trial court maintains exclusive authority to resolve conflicts in testimony. The Court further held that a criminal acquittal in a related proceeding does not require the dissolution of a protective order. Because civil and criminal proceedings apply different standards of proof and serve distinct legal purposes, the "not guilty" verdict has no mandatory impact on the validity of the civil order.
Practical Application
This case serves as a strategic reminder that the civil protective order hearing is often more consequential than the criminal trial for family law purposes. Practitioners representing respondents must understand that winning the criminal case does not provide a "back door" to vacate a civil order. Conversely, for those representing applicants, this case confirms that the complainant's testimony is your most powerful tool; if the trial judge finds your client credible, the order is likely "appeal-proof" on sufficiency grounds. It is also a warning to counsel that pro se briefs will be construed liberally by the Fourth Court, but even a liberal construction cannot overcome the high hurdle of the "preponderance" standard in family violence findings.
Checklists
Preserving Credibility Findings on Appeal
- Ensure the record contains specific "nature of conduct" testimony (e.g., wrestling, forcing, fear-inducing behavior) rather than mere conclusions.
- Explicitly elicit testimony regarding the "history of the relationship" to satisfy the "likely to occur in the future" prong of the Family Code.
- Request specific findings of fact if there is a concern regarding the basis of the trial court’s decision.
Managing Parallel Criminal and Civil Proceedings
- Advise clients that a criminal acquittal will not serve as res judicata or collateral estoppel for a civil protective order.
- Use the civil hearing as an opportunity for discovery for the criminal case, but be wary of the respondent’s Fifth Amendment implications.
- Prepare the applicant to testify consistently; while the standards of proof differ, inconsistent testimony between the civil and criminal trials remains a primary tool for impeachment.
Citation
Joshua Fusilier v. State of Texas ex rel. Valencia Annette Galloway, 04-25-00125-CV (Tex. App.—San Antonio Mar. 18, 2026, no pet. h.) (mem. op.).
Full Opinion
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