Family Violence Sufficiency for Protective Orders: McKay Appeal (2026)

The State of Texas for the Protection of M.D.J., 12-25-00304-CV, July 31, 2026.

On appeal from County Court at Law No. 1, Henderson County, Texas

Synopsis

The Tyler Court of Appeals held that the protective order was supported by legally and factually sufficient evidence where the applicant testified to physical abuse and threats, and that testimony was corroborated by injury photographs and audio recordings. The court further concluded that this record amounted to more than a scintilla of evidence that family violence occurred and was likely to occur in the future, and that the finding was not so against the great weight and preponderance of the evidence as to be clearly wrong or unjust.

Relevance to Family Law

For Texas family lawyers, this opinion is useful well beyond the protective-order docket. A Chapter 85 family-violence finding can materially affect conservatorship, possession, access, supervised visitation arguments, and credibility determinations in parallel SAPCR and divorce litigation, particularly because Family Code section 153.004 requires trial courts to consider protective-order history in custody decisions. The case also underscores a recurring trial reality: a party who presents coherent abuse testimony, corroborating photographs, and contemporaneous recordings can sustain a family-violence finding even where the respondent points to conflicting text messages, competing narratives, or an isolated arrest of the applicant.

Case Summary

Fact Summary

The applicant, M.D.J., sought a protective order arising out of a long-term relationship with Nicholas McKay. According to her testimony, the relationship became abusive early, beginning with emotional and mental abuse and then escalating into physical conduct such as holding her down and shoving her. She testified that the abuse continued during pregnancy, including an incident in which he pushed her to the ground while she was pregnant.

The evidentiary record included more than her oral account. The trial court admitted photographs reflecting injuries over time. M.D.J. also testified to repeated death wishes and threats, including statements that McKay wished she would die or would kill her himself. She further described an incident in which he threatened her with a firearm and another in which, during frustration with their young child, he said he might kill the child.

The trial court also received audio recordings of McKay screaming and cursing at M.D.J. On cross-examination, the defense elicited evidence that M.D.J. had herself been arrested in August 2023 for assaulting McKay, and confronted her with text messages reflecting ordinary communications between the parties. Even so, the trial court found that family violence had occurred and was likely to occur in the future, and it rendered a protective order.

On appeal, the order had already expired. The court therefore addressed mootness first and held that, under the collateral-consequences exception, the sufficiency challenge to the family-violence finding remained live because that finding carries continuing consequences in later family-law litigation.

Issues Decided

• Whether the appeal was moot after the protective order expired.
• Whether the collateral-consequences exception preserved appellate review of the family-violence finding.
• Whether legally sufficient evidence supported the findings required under Texas Family Code sections 81.001 and 85.001.
• Whether factually sufficient evidence supported the findings that family violence occurred and was likely to occur in the future.
• Whether the respondent preserved his additional appellate complaints, including evidentiary and procedural challenges.

Rules Applied

The court applied the standard sufficiency framework used after a bench trial or jury verdict in civil cases. For legal sufficiency, the reviewing court considers the evidence in the light most favorable to the prevailing party, indulges reasonable inferences in that party’s favor, and disregards contrary evidence unless a reasonable factfinder could not. A no-evidence challenge fails if the record contains more than a scintilla of evidence on the vital fact.

For factual sufficiency, where the appellant did not bear the burden of proof below, the question is whether the adverse finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. The appellate court must weigh all evidence supporting and contradicting the finding, while still deferring to the factfinder’s role in resolving conflicts and assessing credibility.

On the merits, the governing statutes were Texas Family Code sections 81.001 and 85.001, which authorize and require a protective order when the trial court finds that family violence occurred. The court also relied on the Family Code definition of “family violence” in section 71.004(1), which includes both acts intended to result in physical harm and threats that reasonably place a family or household member in fear of imminent physical harm, bodily injury, assault, or sexual assault.

On mootness, the court applied the collateral-consequences exception and noted that family-violence findings have continuing significance, including in future conservatorship determinations under Family Code section 153.004. The court also cited authority recognizing that expired protective orders may still be reviewed where the underlying family-violence finding carries ongoing legal consequences.

The court additionally noted preservation and briefing rules. It observed that several issues were waived for inadequate briefing under Texas Rule of Appellate Procedure 38.1(i), and that certain evidentiary complaints were unpreserved under Rule 33.1(a) because no trial objection was made.

Application

The opinion is a straightforward reminder that appellate sufficiency review in protective-order cases is deferential, especially where the trial judge heard live testimony and had corroborating exhibits. The court did not require a perfect evidentiary record or third-party eyewitnesses. Instead, it focused on whether the applicant’s testimony, combined with corroborative materials, crossed the relatively modest legal-sufficiency threshold and whether the overall finding remained supportable when all competing evidence was considered.

Here, the applicant described a pattern of escalating abuse: early emotional abuse, later physical restraint and shoving, abuse during pregnancy, threats to kill her, a firearm threat, and a statement about killing the child. That testimony directly addressed both components necessary for a protective order: that family violence occurred and that it was likely to occur again. The photographs of injuries gave the trial court independent corroboration of physical abuse. The audio recordings added evidentiary texture and tended to reinforce the claim of volatility, intimidation, and threatening conduct inside the relationship.

McKay’s contrary evidence did not compel reversal. The applicant’s prior arrest for assaulting him and the existence of normal text-message exchanges did create factual tension, but they did not eliminate the trial court’s ability to believe her core account. The court treated those conflicts as classic factfinder territory. In other words, evidence of intermittent normalcy in the relationship, or even evidence suggesting mutual conflict, did not negate proof that McKay committed family violence within the meaning of the Family Code.

The appellate court also emphasized procedural discipline. Although McKay raised several additional complaints, most did not survive because they were moot, inadequately briefed, or unpreserved. That feature of the opinion matters strategically: in protective-order appeals, counsel must expect the sufficiency issue to remain reviewable even after expiration, while many collateral complaints may not.

Holding

The court held that the respondent’s challenge to the family-violence finding was not moot, even though the protective order had expired, because the collateral-consequences exception applied. The court recognized that a family-violence finding under Chapter 85 has ongoing legal significance, particularly in later family-law proceedings.

On the merits, the court held that legally sufficient evidence supported the protective order. The applicant’s testimony concerning physical abuse and threats, together with admitted photographs of injuries and audio recordings, constituted more than a scintilla of evidence that family violence occurred and supported the future-likelihood finding required for issuance of the order.

The court also held that the evidence was factually sufficient. Although the record included contrary evidence, including the applicant’s prior arrest and text messages suggesting normal interactions, the trial court’s finding was not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust.

Finally, the court held that the respondent’s other appellate complaints did not warrant relief because they were moot, inadequately briefed, or unpreserved by objection in the trial court.

Practical Application

This case should influence how family-law litigators build and attack a family-violence record in protective-order hearings, divorces, and SAPCRs. For applicants, the decision confirms that a carefully presented evidentiary package—live testimony, dated injury photographs, threatening recordings, and evidence of recurring threats—can sustain the order on appeal even where the relationship history is messy and the parties both have impeachment material. For respondents, the opinion is a warning that generalized claims of mutual combat, isolated impeachment, or proof that the parties sometimes communicated normally will rarely defeat a protective order if the applicant presents a plausible, corroborated narrative of abuse.

In custody litigation, this matters because protective-order findings often migrate into temporary-orders practice, section 153.004 arguments, restrictions on possession, exchange protocols, firearm issues, and the framing of parental decision-making. A lawyer handling divorce or SAPCR proceedings should treat any protective-order hearing as a potentially dispositive credibility event with downstream consequences.

Several practical lessons emerge:

1. Corroboration matters, but it need not be elaborate. Photographs and recordings can significantly strengthen otherwise disputed testimony.
2. Pattern evidence is powerful. Evidence of repeated threats, escalating conduct, and abuse during vulnerable periods such as pregnancy helps support both past occurrence and future likelihood.
3. Preservation still controls. If a party believes audio is incomplete, stale evidence is being offered, or testimony is irrelevant and unfairly prejudicial, the objection must be made in the hearing.
4. Expiration does not end the appellate risk. Because collateral consequences remain, family-violence findings can still be reviewed after the order expires.
5. Trial presentation should anticipate later conservatorship use. The same record may become central in later child-related rulings.

Checklists

Building a Sustainable Protective-Order Record

• Present direct testimony covering specific incidents, dates or approximate timeframes, and the nature of the threats or physical acts.
• Establish the relationship category clearly: family, household, former household member, or parent of a child.
• Offer corroborating photographs with enough context to connect them to the alleged incidents.
• Offer audio, video, texts, or call logs that reflect threats, intimidation, or escalation.
• Elicit testimony addressing future danger, not just past events.
• Tie the threats and conduct to the statutory definition of family violence under Family Code section 71.004.
• Make a clear record on admission of exhibits so the appellate court can evaluate the same materials the trial court considered.

Proving Future Likelihood of Family Violence

• Develop evidence of repeated conduct rather than a single isolated incident where possible.
• Highlight escalation over time, including movement from verbal abuse to physical acts or weapon-related threats.
• Emphasize threats to kill, death wishes, firearm incidents, or threats involving children.
• Show continued hostility, fixation, intimidation, or inability to regulate anger.
• Use contemporaneous recordings or messages to demonstrate the respondent’s tone and volatility.
• Explain why the applicant reasonably fears recurrence based on prior conduct.

Defending Against a Protective Order at Trial

• Preserve every evidentiary complaint with timely, specific objections.
• Challenge foundation, authentication, completeness, and hearsay where appropriate.
• Offer a coherent alternative narrative, not merely isolated contradictions.
• Address future-likelihood directly; do not focus exclusively on disproving past acts.
• Be prepared to explain seemingly inculpatory recordings or messages with context.
• Recognize that normal communications between the parties do not necessarily negate abuse; develop why they matter.
• If arguing self-defense or mutual combat, build that defense with admissible detail rather than implication.

Avoiding Appellate Waiver

• Brief the standards of review accurately.
• Cite the record precisely for each challenged ruling and factual assertion.
• Support each issue with authority and developed analysis under Texas Rule of Appellate Procedure 38.1(i).
• Preserve trial objections under Rule 33.1(a).
• Request rulings on objections and ensure they appear in the reporter’s record.
• If the order expires during appeal, address collateral consequences and mootness explicitly.

Using the Case in Divorce and SAPCR Litigation

• Evaluate whether an existing or prior protective order should be introduced in temporary-orders or final-trial conservatorship proceedings.
• Frame section 153.004 arguments around the continuing significance of family-violence findings.
• Use corroborating abuse evidence to support requests for supervised possession, safe-exchange provisions, or geographic restrictions.
• Anticipate that opposing counsel will use the protective-order record for impeachment and custody restrictions.
• Coordinate trial themes across the protective-order case and the underlying SAPCR or divorce to avoid inconsistent positions.
• Counsel clients that texts showing reconciliation or ordinary communication do not erase the legal significance of violence findings.

Citation

The State of Texas for the Protection of M.D.J. v. McKay, No. 12-25-00304-CV, ___ S.W.3d ___, 2026 WL ___ (Tex. App.—Tyler July 31, 2026, no pet.) (mem. op.).

Full Opinion

Read the full opinion here

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