In Re DS

19 S.W.3d 525, 2000 WL 545901
CourtCourt of Appeals of Texas
DecidedMay 4, 2000
Docket2-99-256-CV
StatusPublished

This text of 19 S.W.3d 525 (In Re DS) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re DS, 19 S.W.3d 525, 2000 WL 545901 (Tex. Ct. App. 2000).

Opinion

19 S.W.3d 525 (2000)

In the Interest of D.S., D.S., D.S., and C.R.R. Appellant.

No. 2-99-256-CV.

Court of Appeals of Texas, Fort Worth.

May 4, 2000.

*527 David A. Pearson, IV, Fort Worth, for Appellant.

Tim Curry, Criminal District Attorney; Charles M. Mallin, Assistant Criminal District Attorney and Chief of the Appellate Division; Helena A. Faulkner, Assistant Criminal District Attorney, Fort Worth, for Appellee.

Panel F: HOLMAN, J.; CAYCE, C.J.; and GARDNER, J.

OPINION

DIXON W. HOLMAN, Justice.

Appellant Helen Ransom appeals the trial court's order terminating her parental rights of her four children, D.S., D.S., D.S., and C.R.R. Appellant argues that the trial court abused its discretion by admitting Dr. John Hunt's expert opinion regarding the cause of D.S.'s burns and by admitting Appellant's statement that she made to a Child Protective Services (CPS) caseworker. Because the trial court did not abuse its discretion, we affirm the trial court's judgment.

I. BACKGROUND

Appellant has a long history with CPS. On May 6, 1997, CPS was contacted to investigate allegations of child abuse concerning D.S. She had been admitted to the hospital three hours after receiving third-degree burns over one-third of her body from her waist down to her toes. When asked how the burns occurred, Appellant explained that their house had been full of people, that she heard a scream, and found D.S. in the bathtub. Appellant told her sister a different story and insisted that D.S. had turned on the hot water while Appellant had been bathing her. During the trial regarding Appellant's parental rights, the State offered the testimony of Dr. Hunt in support of terminating those rights. Dr. Hunt testified that the burn pattern on D.S.'s body was consistent with someone who was forced and pushed down into hot water and was inconsistent with a child who had turned on hot water while bathing. After hearing the evidence and finding termination to be in the children's best interest, the trial court terminated Appellant's parental rights and awarded custody to the Texas Department of Protective and Regulatory Services and Ray Robinson, C.R.R.'s father.

II. STANDARD OF REVIEW

The decision whether to admit evidence rests within the sound discretion of the trial court. See E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex.1995); Oyster Creek Fin. Corp. v. Richwood Inv. II, Inc., 957 S.W.2d 640, 646 (Tex.App.-Amarillo 1997, pet. denied). An abuse of discretion occurs where the trial court acts without reference to any guiding rules or principles; in other words, whether the act was arbitrary or unreasonable. See Goode v. Shoukfeh, *528 943 S.W.2d 441, 446 (Tex.1997); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986).

Under this standard, legal and factual sufficiency are relevant factors in assessing whether the trial court abused its discretion. See Beaumont Bank v. Buller, 806 S.W.2d 223, 226 (Tex.1991); Texas Dep't of Health v. Buckner, 950 S.W.2d 216, 218 (Tex.App.-Fort Worth 1997, no pet.). However, simply because a trial court may decide a matter within its discretion in a different manner than an appellate court would in a similar circumstance does not demonstrate that an abuse of discretion has occurred. See Downer, 701 S.W.2d at 241-42. Nor does an abuse of discretion occur where the trial court bases its decisions on conflicting evidence or where there is some evidence of a substantive and probative character to support the trial court's decision. See Goode, 943 S.W.2d at 446; Davis v. Huey, 571 S.W.2d 859, 862 (Tex.1978); Holley v. Holley, 864 S.W.2d 703, 706 (Tex.App.-Houston [1st Dist.] 1993, writ denied).

III. EXPERT TESTIMONY

Appellant contends that the trial court erred by admitting Dr. Hunt's theory that D.S. suffered an immersion burn because the State did not demonstrate that the underlying scientific technique used to form his theory was reliable.[1]See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 588, 113 S.Ct. 2786, 2794, 125 L.Ed.2d 469 (1993); Robinson, 923 S.W.2d at 555. When asked on direct to describe the burn pattern on the lower trunk of D.S.'s body, Dr. Hunt responded as follows:

The pattern of the burn was, it began about the mid part of the abdomen, just a little bit above the bellybutton and extended down all the way down to and including the feet. On the abdomen, the area of the groins were spared, the crease where you would, from your thigh up to your belly, and the burn itself was rather—the appearance as far as the color was sort of the same when you looked at [it from] top to bottom except the areas where the skin had peeled. Behind each knee was spared. There was no burn in the crease behind the knee on either leg. The soles of the feet had not had any blisters but other areas did have blisters, so there was what—and it appeared to be an immersion—type of burn.

Appellant's counsel objected to Dr. Hunt's testimony and insisted that it called for an expert opinion and that the State had failed to establish the basis for Dr. Hunt's conclusion that D.S. had suffered an immersion burn. Appellant then asked the court to instruct the State to lay the predicate mandated for scientific evidence under the Daubert/Robinson standard. The court overruled the objection, accepted Dr. Hunt as an expert, and admitted his opinion that D.S. had suffered an immersion burn.

Expert testimony commonly is in the form of an opinion. See Ford Motor Co. v. Aguiniga, 9 S.W.3d 252, 262 (Tex. App.-San Antonio 1999, pet. filed). Whether the opinion rises to the level of admissible evidence is determined by the rules of evidence. See generally TEX. R. EVID. 702; Aguiniga, 9 S.W.3d at 262. Rule 702 requires that an expert be qualified "by knowledge, skill, experience, training, or education," and that his testimony assist the trier of fact in understanding the evidence or determining a fact in issue. TEX. R. EVID. 702; see also Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 712 (Tex.1997), cert. denied, 523 U.S. 1119, 118 S.Ct. 1799, 140 L.Ed.2d 939 (1998); Lincoln Property Co. v. DeShazo, 4 S.W.3d 55, 58 (Tex.App.-Fort Worth *529 1999, pet. denied).

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Related

Daubert v. Merrell Dow Pharmaceuticals, Inc.
509 U.S. 579 (Supreme Court, 1993)
Kumho Tire Co. v. Carmichael
526 U.S. 137 (Supreme Court, 1999)
Merrell Dow Pharmaceuticals, Inc. v. Havner
953 S.W.2d 706 (Texas Supreme Court, 1997)
Beaumont Bank, N.A. v. Buller
806 S.W.2d 223 (Texas Supreme Court, 1991)
EI Du Pont De Nemours & Co. v. Robinson
923 S.W.2d 549 (Texas Supreme Court, 1996)
Texas Department of Health v. Buckner
950 S.W.2d 216 (Court of Appeals of Texas, 1997)
Goode v. Shoukfeh
943 S.W.2d 441 (Texas Supreme Court, 1997)
Lincoln Property Co. v. DeShazo
4 S.W.3d 55 (Court of Appeals of Texas, 1999)
Ford Motor Co. v. Aguiniga
9 S.W.3d 252 (Court of Appeals of Texas, 1999)
Olin Corp. v. Smith
990 S.W.2d 789 (Court of Appeals of Texas, 1999)
In Re News America Publishing, Inc.
974 S.W.2d 97 (Court of Appeals of Texas, 1998)
Holley v. Holley
864 S.W.2d 703 (Court of Appeals of Texas, 1993)
Downer v. Aquamarine Operators, Inc.
701 S.W.2d 238 (Texas Supreme Court, 1985)
Gammill v. Jack Williams Chevrolet, Inc.
972 S.W.2d 713 (Texas Supreme Court, 1998)
Davis v. Huey
571 S.W.2d 859 (Texas Supreme Court, 1978)
Oyster Creek Financial Corp. v. Richwood Investments II, Inc.
957 S.W.2d 640 (Court of Appeals of Texas, 1998)
In the Interest of D.S.
19 S.W.3d 525 (Court of Appeals of Texas, 2000)

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19 S.W.3d 525, 2000 WL 545901, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-ds-texapp-2000.