In the Interest of J.W. and T.W., Children v. the State of Texas

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-22-00360-CV

IN THE INTEREST OF J.W. AND T.W., CHILDREN

On Appeal from the 99th District Court Lubbock County, Texas Trial Court No. 2021-542,797, Honorable J. Phillip Hays, Presiding

June 15, 2023 MEMORANDUM OPINION Before PARKER and DOSS and YARBROUGH, JJ.

Our opinion issued on May 25, 2023, is withdrawn and vacated, and this opinion

is substituted in lieu thereof.

Father, J.D.W., appeals from the trial court’s order terminating his parental rights

to his children, J.W. and T.W.1 By issues one and two, he contends the evidence is legally

and factually insufficient to support (1) termination under section 161.001(b)(1)(D), (E),

and (O) of the Texas Family Code and (2) the best interest finding. By his third issue, he

1To protect the privacy of the parties involved, we refer to the parents and children by their initials. See TEX. FAM. CODE ANN. § 109.002(d); TEX. R. APP. P. 9.8(b). asserts the trial court abused its discretion in making a conservatorship finding based on

insufficient evidence. We affirm.

ANALYSIS

ISSUES ONE AND TWO

By issues one and two, father makes a legal and factual sufficiency challenge.

After a jury trial, a legal-sufficiency challenge may be preserved in the trial court in one of

the following ways: (1) a motion for instructed verdict, (2) a motion for judgment

notwithstanding the verdict, (3) an objection to the submission of the issue to the jury, (4)

a motion to disregard the jury’s answer to a vital fact issue, or (5) a motion for new trial.

See In re D.T., 625 S.W.3d 62, 75 (Tex. 2021) (citing Aero Energy, Inc. v. Circle C Drilling

Co., 699 S.W.2d 821, 822 (Tex. 1985)). Preservation of a factual-sufficiency challenge

requires a motion for new trial. Id. (citing TEX. R. CIV. P. 324(b)(2)).

A review of the record reveals father filed a motion for directed verdict after the

close of the case presented by the Texas Department of Family and Protective Services,

which was denied by the trial court. Thereafter father proceeded to introduce evidence

and present his case but did not re-urge his motion at the close of evidence. By failing to

re-urge his motion, father waived error on his motion for directed verdict and his legal

sufficiency challenge.2 Father did not file a motion for new trial or any other motions or

objections to preserve error.

2See In the Interest of L.A.M., No. 07-21-00124-CV, 2022 Tex. App. LEXIS 3515, at *8 (Tex. App.— Amarillo May 24, 2022, no pet. h.); Texas Steel Company v. Douglas, 533 S.W.2d 111, 113–14 (Tex. App.— Fort Worth 1976, writ ref’d n.r.e.) (“The law is well settled that a defendant by electing not to stand on its motion for an instructed verdict made after the plaintiff had introduced its evidence and rested its case, and 2 Father failed to preserve his legal and factual sufficiency challenges.3 Accordingly,

issues one and two are overruled.

ISSUE THREE—CONSERVATORSHIP FINDING

Having found father failed to preserve his legal and factual sufficiency challenges,

we need not address the conservatorship issue. Issue three is overruled.

CONCLUSION

We affirm the judgment of the trial court.

Alex L. Yarbrough Justice

by proceeding with the introduction of its own evidence, waives its motion for an instructed verdict.”); Tex. Animal Health Comm’n v. Miller, 850 S.W.2d 254, 255–56 (Tex. App.—Eastland 1993, writ denied) (“The Commission, by not electing to stand on its motion for instructed verdict and by proceeding with the introduction of its own evidence, waived its motion for instructed verdict.”).

3 TEX. R. APP. P. 33.1; TEX. FAM. CODE ANN. § 109.002; see also In re B.L.D., 113 S.W.3d 340, 350

(Tex. 2003). 3