in the Interest of A.B. and K.B., Children

• Court: Court of Appeals of Texas
• Decided: April 30, 2015
• Docket: 02-14-00384-CV
• Status: Published

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-14-00384-CV

IN THE INTEREST OF A.B. AND K.B., CHILDREN

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FROM THE 90TH DISTRICT COURT OF YOUNG COUNTY TRIAL COURT NO. 32,044

MEMORANDUM OPINION1

Appellant L.B. appeals the termination of his parental rights to his two

daughters, A.B. and K.B. In one issue, Appellant contends the trial court erred in

denying his motion for mistrial after the jury heard evidence of a criminal history

that the Texas Department of Family and Protective Services (the Department)

1 See Tex. R. App. P. 47.4. attributed to Appellant but which it later discovered belonged to someone else

with the same name as Appellant. We affirm the judgment of termination.

Background

On April 18, 2013, the Department filed its original petition seeking

termination of Appellant’s parental rights to A.B. and K.B., as well as the parental

rights of the children’s mother. The Department initially placed the children with

their maternal grandmother as part of a child safety placement. The trial court

appointed the Department the temporary managing conservator of the children

on May 9, 2013. The children’s maternal aunt and uncle intervened on October

30, 2013. On April 24, 2014, the trial court extended the dismissal date to

November 7, 2014.

A jury trial began on October 24, 2014. The parties resolved the issues

regarding the children’s mother before trial, so the jury trial focused on whether

Appellant’s parental rights should be terminated. For each child, the charge

asked the jury whether Appellant had knowingly placed or had knowingly allowed

the children to remain in conditions or surroundings that had endangered their

physical or emotional well-being or had engaged in conduct or knowingly placed

the children with persons who had engaged in conduct that had endangered their

physical or emotional well-being and, additionally, whether termination was in the

children’s best interest. Tex. Fam. Code Ann. § 161.001(1)(D), (E), (2) (West

2014). As to both children, the jury answered affirmatively. In the final order, the

trial court terminated Appellant’s parental rights, named the maternal aunt and

2 uncle as joint managing conservators of the children, and granted the children’s

mother possessory conservatorship. Appellant brought this appeal.

Evidence

Appellant was fifty-nine years old and admitted using illegal drugs since he

was eighteen—a span of over forty years. The children’s mother said that

Appellant turned their house into a crack house in 2006. Appellant thought A.B.

was born positive for drugs. Appellant admitted using crack two weeks before

the Department became involved in this case. Appellant admitted using

methamphetamine between five to ten times after the Department became

involved.

The children’s mother said Appellant hit, choked, kicked, and physically

abused her. Once she went to the hospital and suffered a temporary hearing

loss. She said the children witnessed the abuse.

Appellant thought he had been arrested once for DWI. He admitted

spending three months in jail for a forgery conviction in 2004. He was arrested in

January 2012 for possession of cocaine. In July 2013, after the removal of his

children and while the case was pending, Appellant was arrested and

incarcerated for felony possession of methamphetamine. Appellant spent from

July 2013 until June 2014 in jail for that offense. While in jail, he was transferred

to another county and convicted of the 2012 possession-of-cocaine offense.

Appellant had not seen the children in well over a year preceding the trial.

Appellant said he was living with his eighty-two-year-old mother. He received

3 disability income. Because he was manic depressive and bipolar, he said that

throughout his life he had lost jobs for fighting. Appellant’s description of the

consistency with which he took his medications came across as undisciplined.

The home in which the family lived was filthy.

Appellant’s Issue

In one issue, Appellant argues that the trial court erred by denying his

motion for mistrial after the Department improperly impeached Appellant with a

criminal history that was not his but was that of someone else with the same

name as Appellant.

The Department asked to admit Petitioner’s Exhibits 8, 9, 10, 11, and 12.

There were no objections, and the trial court admitted them. Petitioner’s Exhibit

8 was a forgery state jail felony conviction from 2004 for which Appellant

admitted serving three months.

When questioned about Petitioner’s Exhibit 9, a 2003 DWI with an open

container conviction out of Gregg County, Appellant denied committing that

offense. The Department requested and obtained permission to publish it to the

jury anyway, and the Department published it to the jury. The Department then

asked Appellant if he remembered picking up, at the same time in 2003, a

conviction for fleeing a police officer as shown in Petitioner’s Exhibit 10.

Appellant denied committing that offense as well. At this point the Department

requested and the trial court granted the Department’s request to have the jury

leave the courtroom.

4 With the jury absent, Appellant then moved for a mistrial because the

criminal history that the Department had questioned Appellant about was not

Appellant’s but was Appellant’s son’s criminal history and because the admission

of these convictions had tainted the jury. The Department apologized, offered to

withdraw the exhibits, and requested the trial court to instruct the jury that the

Department had made a mistake and that the convictions were not Appellant’s.

The Department did not want the trial court to inform the jury that the convictions

were Appellant’s son’s convictions. Appellant had earlier testified before the jury

that he had a forty-two-year-old son named L.B. Jr. Appellant argued that

because he had denied the offenses, the jury would think Appellant was a liar. In

contrast, the children’s mother’s counsel argued that such an instruction would

enhance Appellant’s credibility because he correctly denied the convictions were

his. The Department published Petitioner’s Exhibit 9 to the jury and discussed

Petitioner’s Exhibit 10 before the jury but did not publish it to the jury; the trial

court admitted Petitioner’s Exhibits 11 and 12, but the Department neither

discussed nor published them to the jury. The trial court denied Appellant’s

motion for mistrial.

When the jury returned, the trial court gave the following instruction:

THE COURT: You may be seated. Ladies and gentlemen of the jury, you heard a lot of information and cross-examination—or direct examination concerning State’s Exhibit 9 and 10 on a driving while intoxicated, or DWI, and a fleeing. I’m here to instruct you now that it’s been determined that that was not this [L.B.], so I’m instructing you to disregard that information. And you also heard—as far as any DWI or any fleeing, it was the wrong [L.B.] that’s in here, so I’m

5 telling you to disregard anything as to that criminal history concerning that.

You also heard the offer of 11 and 12 of which we haven’t even got into yet. That also has been determined, whatever those charges are, are not this [L.B.]. So with that in mind, can everybody do that okay? You can disregard on that?

The first things that were admitted that you do have, that is part of the evidence of this case for your consideration. But anything on 9, 10, DWI and fleeing, that [the Department] asked about, and whatever is contained in 11 and 12, I’m asking that you disregard and not hold that against [L.B.].

When the Department resumed questioning Appellant, the first thing the

Department said to him was, “Mr. [B.], I want to apologize. I got you confused

with another Mr. [B.] Okay?” Moments later, the Department added, “I’m not

going to be asking you about any DWI or any fleeing because that wasn’t you.

Okay?”

Appellate courts review a trial court’s denial of a motion for mistrial under

an abuse of discretion standard. See Lewis v. United Parcel Serv., Inc., 175

S.W.3d 811, 815 (Tex. App.—Houston [1st Dist.] 2004, pet. denied); In re J.A.,

109 S.W.3d 869, 874 (Tex. App.—Dallas 2003, pet. denied); Schlafly v. Schlafly,

33 S.W.3d 863, 868 (Tex. App.—Houston [14th Dist.] 2000, pet. denied). An

abuse of discretion on a motion for mistrial occurs when the trial court acts

without references to any guiding principle. Rogers v. Dep’t of Family &

Protective Servs., 175 S.W.3d 370, 375 (Tex. App.—Houston [1st Dist.] 2005,

pet. dism’d w.o.j.); see Lewis, 175 S.W.3d at 815; J.A., 109 S.W.3d at 874.

6 When a trial court instructs a jury to disregard evidence, the reviewing

court may review the evidence to determine whether an instruction to disregard

was adequate to cure its admission. See In re City of Houston, 418 S.W.3d 388,

397 (Tex. App.—Houston [1st Dist.] 2013, orig. proceeding). A new trial may be

justified if the impact of the improper testimony was incurable by the trial court’s

instructions. Id. In the absence of proof to the contrary, we presume the jury

followed the court’s instruction to disregard evidence. J.A., 109 S.W.3d at 875;

In re K.S., 76 S.W.3d 36, 45 (Tex. App.—Amarillo 2002, no pet.); see In re

G.C.F., No. 02-06-00282-CV, 2007 WL 1018570, at *9 (Tex. App.—Fort Worth

Apr. 5, 2007, no pet.) (mem. op.) (“[W]e have no reason to believe that any harm

caused by that questioning was not cured by the trial court’s instruction to

disregard. Therefore, we cannot conclude that the trial court abused its

discretion.”).

The trial court’s instruction to disregard corroborated Appellant’s testimony

that the convictions in State’s Exhibits 9 and 10 were not his. We fail to see how

this harmed Appellant’s credibility before the jury. The withdrawal of State’s

Exhibits 9, 10, 11, and 12 were, if anything, an embarrassment to the

Department and undermined its credibility.

Appellant contends the jury would have concluded the convictions were for

Appellant’s son, whose name was L.B. Jr. Appellant argues this was extremely

prejudicial because it called into question Appellant’s parenting skills. For the

reasons given below, we disagree.

7 The first name in Petitioner’s Exhibits 9, 10, 11, and 12 is “Lawrence.” Our

review of the various exhibits does not show Appellant ever went by the first

name “Lawrence.” Instead, he went by “Larry.” If Appellant’s first name was not

Lawrence, his son’s first name—which was the same as Appellant’s—was not

Lawrence either. This suggests the convictions were not for either Appellant or

his son.

Additionally, Petitioner’s Exhibit 9, the only exhibit published to the jury,

was for someone with the initials L.L.B. Appellant testified and gave his full

name, and the initials for his full name were L.D.B. When giving his son’s name,

he said, “[L.] D. [B.] Jr.” Although both Appellant and the Department asserted to

the trial court that the convictions were Appellant’s son’s convictions, the middle

initials of Appellant’s son and the person identified in Petitioner’s Exhibit 9, as

well as Petitioner’s Exhibits 10, 11, and 12, are not the same. In short, not only

were Petitioner’s Exhibits 9, 10, 11, and 12 not Appellant’s convictions, they do

not appear to be his son’s convictions either.2

The trial court’s instructions did not tie the offenses to Appellant’s son.

Later, when asked about the withdrawn convictions, Appellant responded, “I don’t

2 Within Petitioner’s Exhibit 9, L.L.B. is also identified as “[L.B.] Jr.” This may explain why both Appellant and the Department asserted the conviction was for Appellant’s son. However, the very first page of Petitioner’s Exhibit 9 identifies the defendant with a name having the initials L.L.B. Petitioner’s Exhibit 10 was for the same person with the initials L.L.B. Within Petitioner’s Exhibit 10, L.L.B. is also identified as “[L.B.] Jr.” Petitioner’s Exhibits 11 and 12 were for the same person (L.L.B.) but included the “Jr.”

8 know who it was, but [the Department] tried to put a whole lot of stuff on me.”

Appellant’s testimony did nothing to tie the convictions to his son and, if anything,

appeared to have correctly distanced any link between the convictions and his

son. The record does not support Appellant’s contention that the jury would have

connected the convictions to Appellant’s son and concluded Appellant was a

poor parent on that basis.

Nothing in the record suggests that the jury disregarded the trial court’s

instructions. We, therefore, presume the jury followed them. See J.A., 109

S.W.3d at 875. The Department, by apologizing to Appellant before the jury and

acknowledging the convictions were not his, underscored the importance of not

using those convictions against Appellant. We hold the trial court did not abuse

its discretion by denying Appellant’s motion for mistrial and overrule Appellant’s

issue.

Conclusion

Having overruled Appellant’s sole issue, we affirm the trial court’s

judgment.

/s/ Anne Gardner ANNE GARDNER JUSTICE

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

DELIVERED: April 30, 2015