in the Interest of J.W.O., a Child

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-10-00065-CV

IN THE INTEREST OF J.W.O., A CHILD

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FROM THE 235TH DISTRICT COURT OF COOKE COUNTY

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MEMORANDUM OPINION1

J.O. appeals from a jury verdict terminating her parental rights to her son,

J.W.O. In two points, appellant contends that the trial court erred by (1) denying

her motion in limine regarding the introduction of evidence about her parental

rights being terminated as to other children and (2) denying her request for a

limiting instruction in the charge.2 We affirm.

1 See Tex. R. App. P. 47.4. 2 Because appellant does not challenge the sufficiency of the evidence, a detailed explanation of the background facts is unnecessary. Motion in Limine

After the Department of Family and Protective Services filed suit seeking

termination, appellant’s counsel filed a motion in limine asking the trial court to

prohibit the parties from offering any evidence related to “any other matter

outside of this cause related to the termination and or modification of [J.O.’s]

parental rights in this or any other jurisdiction.”3 Nothing in the record indicates

that the trial court ruled on this motion. Immediately before trial, appellant’s

counsel “reurge[d] the motion in limine.” The trial court denied the motion in

limine.

During trial, the Department called J.O. as its first witness. When asked

whether her parental rights to her four other children had been terminated, J.O.

said yes. Her counsel did not object to the Department’s questioning, nor did he

object to further questioning as to why her rights to those children had been

terminated.

A trial court’s ruling on a motion in limine is not a final ruling on the

evidence and preserves no error for appellate review. See Acord v. Gen. Motors

Corp., 669 S.W.2d 111, 116 (Tex. 1984); Ulogo v. Villanueva, 177 S.W.3d 496,

500 (Tex. App.––Houston [1st Dist.] 2005, no pet.) (op. on reh’g). A motion in

limine merely precludes reference to the subject of the motion without a party’s

first obtaining a ruling on the admissibility of those matters outside the presence

of the jury. Ulogo, 177 S.W.3d at 500–01; Owens-Corning Fiberglas Corp. v. 3 All of the prior terminations occurred in Missouri.

2 Malone, 916 S.W.2d 551, 557 (Tex. App.––Houston [1st Dist.] 1996), aff’d, 972

S.W.2d 35 (Tex. 1998). Thus, to preserve a complaint for appeal involving the

subject of a motion in limine, the complaining party must also object when the

evidence is offered at trial. Greenberg Traurig of N.Y., P.C. v. Moody, 161

S.W.3d 56, 91 (Tex. App.––Houston [14th Dist.] 2004, no pet.).

Here, appellant failed to object to the Department’s questions; thus, she

failed to preserve her complaint about the admission of the evidence. See Tex.

R. App. P. 33.1(a)(1); Boulle v. Boulle, 254 S.W.3d 701, 709 (Tex. App.––Dallas

2008, no pet.). We overrule her first point.

Limiting Instruction

In her second point, appellant contends that the trial court reversibly erred

by refusing to include an instruction in the charge prohibiting the jury from

considering “any evidence of any action taken against [J.O.] in any other state.”

At the conclusion of trial, upon appellant’s request, the trial court directed a

verdict for appellant on the alleged ground for termination that her parental rights

to other children had been terminated. See Tex. Fam. Code

Ann. § 161.001(1)(M) (Vernon Supp. 2010). While the charge was being

prepared, appellant asked verbally and in writing that the jury be instructed not to

consider the evidence about the prior terminations because prior termination had

been removed as a ground. However, the trial court denied the requested

3 instruction because the jury could “consider that [evidence] . . . as to what’s in the

best interest of the child.”

A party is entitled to a limiting instruction when evidence is admissible for

one purpose but not another. Tex. R. Evid. 105(a); see Tex. R. Civ. P. 278

(providing that a judgment is not reversible for failure to submit an instruction

unless “a substantially correct . . . instruction has been requested in writing and

tendered by the party complaining of the judgment”). When a trial court refuses

to submit a requested instruction, the question on appeal is whether the request

was reasonably necessary to enable the jury to reach a proper verdict. Tex.

Workers’ Comp. Ins. Fund v. Mandbauer, 34 S.W.3d 909, 912 (Tex. 2000). A

proper instruction must (1) assist the jury, (2) accurately state the law, and (3)

find support in the pleadings and the evidence. Id.; see Tex. R. Civ. P. 278.

Here, the evidence was admitted for all purposes because appellant failed

to object to its admission. See In re K.S., 76 S.W.3d 36, 40 (Tex. App.––Amarillo

2003, no pet.). But even after the directed verdict on the prior termination

ground, the evidence was still relevant as to the jury’s determination of J.W.O.’s

best interest. See In re C.H., 89 S.W.3d 17, 28, 45 (Tex. 2002) (explaining that

evidence probative of acts or omissions under section 161.001(1) may also be

probative of a child’s best interest); In re J.H., No. 02-09-00367-CV, 2010 WL

3618712, at *4 (Tex. App.––Fort Worth Sept. 16, 2010, no pet.) (listing Holley

best interest factors, including acts or omissions of parent, parental ability, and

4 stability of home). Accordingly, we conclude that appellant’s proposed limiting

instruction was not reasonably necessary to enable the jury to reach a proper

verdict; therefore, the trial court did not reversibly err by denying the requested

instruction. We overrule appellant’s second point.

Conclusion

Having overruled appellant’s two points, we affirm the order of termination.

TERRIE LIVINGSTON CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.

DELIVERED: December 2, 2010