In the Interest of W.R.B., D.R.B., G.G.B. Jr., B.T.B., and C.L.B v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: May 11, 2023
• Docket: 09-22-00389-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-22-00389-CV __________________

IN THE INTEREST OF W.R.B., D.R.B., G.G.B. JR., B.T.B., AND C.L.B.

__________________________________________________________________

On Appeal from the County Court at Law No. 3 Montgomery County, Texas Trial Cause No. 13-07-07557-CV __________________________________________________________________

MEMORANDUM OPINION

Father seeks to overturn the trial court’s order terminating his

parental relationships with Willow, Delilah, Gavin, Ben, and Chelsea.1

1To protect the minors’ identities, we have used pseudonyms for their names and the members of their family. Tex. R. App. P. 9.8 (Protection of Minor’s Identity in Parental-Rights Termination Cases). We also note that Mother’s parental rights to the same five children were terminated in a separate cause, assigned Trial Court Cause Number 22- 10-14152. Although Mother appealed, we affirmed the trial court’s order terminating Mother’s parent-child relationships with the same children who are the subjects of this appeal in Appeal Number 09-22-00402-CV. 1 In a single issue, Father argues the trial court erred in admitting the

Judgment of Conviction and the indictment from his criminal case,

evidence that shows he was indicted and convicted on one count of

Continuous Sexual Abuse of a Child. 2

As to the indictment, it alleges that Father, in a period of thirty

days or more from November 2014 through November 2020 and when

Willow and Delilah were children, committed two or more acts of sexual

abuse against them by touching their genitals with his “hand and an

object, namely a massager/vibrator, with the intent to arouse or gratify

the Defendant’s sexual desire.” As explained below, the legislature made

a parent’s conviction for certain crimes, including the crime of

Continuous Sexual Abuse of a Child, a predicate ground on which a

factfinder may choose to terminate a parent-child relationship. 3 Father’s

issue, however, concerns whether the evidence was admissible and not

whether it was sufficient to justify terminating his relationship with his

five children. As to Father’s complaint, the evidence shows he was

2Father appealed from the conviction in his criminal case. His appeal is currently before the Ninth Court of Appeals and is assigned Appeal Number 09-22-00286-CR. 3Tex. Fam. Code Ann. § 161.001(b)(1)(L)(xiv).

2 convicted of Continuous Sexual abuse of a Child that was cumulative of

other similar evidence which was admitted without objection. Because

the admission of the judgment was harmless in light of the admission of

the other evidence showing Father had sexually abused his children, we

will affirm.

Background

The issue Father raises in his appeal does not require a full

discussion of the evidence before the jury during the trial. According to

Father, the trial court erred in admitting the judgment from his criminal

trial, which shows that he was convicted of Continuous Sexual Abuse of

a Child. Father’s theory is that the judgment was not admissible under

the Rules of Evidence that apply to admitting judgments in prior cases

because the judgment in his criminal case is currently on appeal, so it is

not yet final. 4 Therefore, we limit our discussion of the background to the

information needed to explain our resolution of Father’s issue.

In May 2021, the Texas Department of Family and Protective

Services (the Department) sued Father seeking to terminate his parental

rights on several grounds, including the predicate grounds of condition

4See Tex. R. Evid. 803(22) (Judgment of a Previous Conviction). 3 endangerment, conduct endangerment, having incurred a conviction for

seriously injuring a child, constructive abandonment, and his alleged

failure to comply with his family service plan. 5

Twelve witnesses testified after the case was called to trial: (1) the

CPS caseworker; (2) Father; (3) an advocate the trial court appointed in

Father’s criminal case to attend the criminal trial with the children, talk

with the children, and to encourage the children to “not be afraid to come

into court and tell their truth[;]” (4) one of two advocates the trial court

appointed to assist the children in the family law proceeding the

Department filed to terminate Father’s parental rights, their CASA; (5)

the second of the two CASAs in the family law proceeding; (6) the CASA

supervisor, who testified he visited with Father when Father was in jail;

(7) Father’s stepbrother; (8) Tori, Father’s twenty-one-year old daughter;

(9) Willow; (10) Gavin; (11) Delilah; and (12) Ben. On appeal, Father

didn’t challenge the jury’s findings on three predicate grounds of

condition endangerment, conduct endangerment, or dispute that he had

been found guilty of Continuous Sexual Abuse of a Child. 6 Furthermore,

5Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E, (L), (N), (O). 6See id. § 161.001(b)(1)(D), (E), (L)(xiv).

4 Father hasn’t challenged sufficiency of the evidence supporting the jury’s

best-interest finding. 7

During the trial, the Department’s attorney elicited direct

testimony from Willow, Delilah, Gavin, and Ben, which details Father’s

sexual misconduct. For instance, the jury heard Willow testify that

Father used a massager on her “private area.” She added that Father

touched her chest, grabbed her “rear end,” and grabbed her “private area”

when she slept with him on the couch. Delilah testified Father applied

lotion to her “private areas” with his hands many times, and she said he

did the same thing to some of her sisters too. According to Delilah, she

saw her Father touch Tori “[b]etween her legs, . . . [o]n her thighs, on her

butt, and on her chest area[,]” and she had seen them “sleeping on the

same couch and . . . usually . . . smiling and stuff.”

Gavin testified he saw Tori use a massager on Father, which in his

opinion he considered to be abuse. Gavin stated that while living with

Father in one town, which Gavin identified, Tori slept with Father on the

couch every night. Gavin added that he had seen his Father “grab his

sisters’ breasts or their rear end.” When Ben testified, he told the jury

7Id. § 161.002(b)(2). 5 that he saw Father put a “vibrating thing” on Willow’s “private area.”

Ben said he had seen his Father touch Willow’s breast and butt. Four of

Father’s children testified they wouldn’t feel safe if returned to Father’s

care.

On appeal, Father complains the trial court erred in admitting the

judgment of conviction from his criminal trial, claiming it was

inadmissible under Rule 803(22) of the Rules of Evidence. The

Department marked the judgment of conviction from Father’s criminal

trial as Exhibit 10. After hearing the parties’ arguments, the trial court

overruled Father’s objection and admitted Exhibit 10 before the jury in

the trial.

Shortly after the trial court admitted Exhibit 10 into evidence, the

record shows that the Department’s attorney elicited testimony from

Father that describes the information in Exhibit 10. For instance, the

judgment reflects Father was convicted of the Continuous Sexual Abuse

of a Child. On cross-examination, Father confirmed he was convicted of

continuous sexual abuse of a child. And on cross-examination, Father

confirmed that in his criminal trial he was given a ninety-nine-year

sentence.

6 When Father was questioned by the Department’s attorney,

however, Father’s attorney never objected to any of the questions the

Department’s attorney asked him when questioning Father about

Exhibit 10. Father’s attorney also didn’t ask the trial court to allow

Father a “running objection” to any reference in the trial to any testimony

about Exhibit 10 or to its contents. 8 During the trial and as to Exhibit 10,

Father testified that:

• He recognized the exhibit;

• It contains his signature;

• His fingerprints are on it;

• His criminal case was tried “this year” [(2022)];

• Exhibit 10 is a copy of the judgment of conviction by a jury;

• The jury found him guilty;

• He was found guilty of “Continual sexual abuse of a child[,] and

• He was sentenced to “99 years . . . in TDJC[.]”

8See Ethington v. State, 819 S.W.2d 854, 858-59 (Tex. Crim. App. 1991) (describing the appropriate use of running objections to preserve error). 7 Standard of Review

We review a trial court’s ruling admitting evidence for abuse of

discretion. 9 A trial court abuses its discretion when it acts without regard

to the guiding rules or principles governing the admission of evidence, or

if its decision to admit or exclude evidence is shown to have been

arbitrary or unreasonable. 10

Even if an abuse of discretion occurred in admitting evidence that

a party complains of on appeal, we will reverse the judgment only when

the record shows the error was harmful, which requires the appellant to

show the error either “probably caused the rendition of an improper

judgment[,]” or it “probably prevented the appellant from properly

presenting the case to the court of appeals.” 11 When reviewing for harm,

we review the entire record and require the appellant “to demonstrate

that the judgment turns on the particular evidence admitted” in the

9In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005). 10See Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241- 42 (Tex. 1985). 11Tex. R. App. P. 44.1; see also U-Haul Int’l Inc. v. Waldrip, 380

S.W.3d 118, 132 (Tex. 2012). 8 trial. 12 Even when evidence is admitted in error, however, the error on

review will be found to be “harmless if it is merely cumulative” of other

evidence that the appellant hasn’t complained about in the appeal. 13

Discussion

According to Father, Texas Rule of Evidence 803(22) makes the

judgment and the indictment tied to his conviction for Continuous Sexual

Abuse of a Child inadmissible because his conviction is on appeal and not

yet final. Father was convicted under the judgment at issue in the 435th

District Court of Montgomery County, Texas in Cause Number 20-11-

14200. The trial court signed the judgment in August 2022, and the

judgment is on appeal and not yet final. 14 The offense is a first-degree

felony, and the judgment shows that Father received a ninety-nine-year

Under the Family Code, a predicate ground for terminating a

parent-child relationship includes a parent having incurred one of

several convictions under the Penal Code, one of which is Penal Code

12See Nissan Motor Co. v. Armstrong, 145 S.W.3d 131, 144 (Tex. 2004). 13Id. 14The appeal is Appeal Number 09-22-00286. 9 Section 161.001(b)(1)(L)(xiv), which is a conviction that involves the

continuous sexual abuse of a child or of children. 15 Importantly, the

Family Code doesn’t expressly require that a parent’s conviction be final

to serve as a predicate ground for terminating a parent’s relationship

with a child under section 161.001(L), as the statute merely requires the

parent to have “been convicted[,]” and does not require that a parent have

a final conviction. 16

On appeal, Father argues the Texas Rules of Evidence control over

the Family Code as to whether the indictment and judgment in his

criminal case were admissible. He asks that we hold the trial court erred

in allowing the indictment and judgment admitted, and he argues that

this Court should apply the Rules of Evidence in a way that would

potentially nullify the legislature’s decision about how a certain number

of criminal judgments should be treated in civil trials in cases filed by the

Department when it seeks to terminate a parent’s relationship with their

child.

15Tex.Fam. Code Ann. § 161.001(b)(1)(L)(xiv). 16Id. § 161.001(b)(1)(L). We are making this statement as an

observation and not as a holding in this appeal. 10 According to Father, the judgment and the indictment tied to it

were inadmissible under Texas Rule of Evidence 803(22) because that

rule requires judgments in criminal cases to be final—meaning all

possible appeals have been exhausted—before a judgment in a criminal

case may be used as evidence in a trial over terminating a parent’s

relationship with their child. As to Rule 803(22), Father notes the Rule

states that in a civil case, the hearsay rules do not exclude the admission

of a judgment of a previous conviction if (i) the judgment was entered

after a trial or upon a plea of guilty (but not upon a plea of no-contest);

(ii) the conviction was for a felony; (iii) the evidence is admitted to prove

any fact essential to sustain the judgment of conviction; and (iv) an

appeal of the conviction is not pending. 17 Father argues that because the

appeal in his case is pending, the judgment in his criminal case should

not have been admitted in the trial of the civil case to terminate his

parental rights because the judgment, when the civil trial occurred, was

not final.

Before addressing Father’s argument about the admission of the

judgment of conviction in the trial over terminating his parental rights,

17Tex. R. Evid. 803(22)(A). 11 we will address Father’s argument complaining about the trial court’s

decision to admit the indictment that led to Father’s conviction for

Continuous Sexual Abuse of a Child. At trial, Father objected to the

indictment “because it is – it is just an indictment. It’s not a formal

charge, No. 1.”

Under the general rule of error preservation—the rule uniformly

followed by Texas courts—an objection a party makes in the trial must

comport with the claim the party raises on appeal. 18 Thus, “[a]n objection

stating one legal theory [at trial] may not be used to support a different

legal theory on appeal.” 19 Here, Father’s argument as to the indictment

does not comport with the objection he raised in the trial. 20 Since Father

failed to preserve the complaint he seeks to raise on appeal regarding the

indictment—that it was inadmissible under Rule 803(22)—he did not

preserve his right to have that part of the argument he raises reviewed

on appeal. 21

18Clarkv. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012). 19Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995) (quoting Johnson v. State, 803 S.W.2d 272, 292 (Tex. Crim. App. 1990)). 20Gauldin v. State, 683 S.W.2d 411, 413 (Tex. Crim. App. 1984). 21Id.

12 To be sure, in many instances a judgment convicting a parent of one

of the sixteen offenses under Family Code Section 161.001(b)(1)(L) will

not be final when the trial of the family-law proceeding occurs. That’s

because family-law proceedings and appeals are on accelerated

timetables when compared to the time required to dispose of the typical

felony criminal trial. 22 Even though Father’s argument raises an

interesting legal issue that involves a question of statutory

interpretation, we need not decide whether the Family Code—which does

not require the defendant’s conviction to be final—or the Rule of

Evidence—which does require a conviction to be final—controls on the

record before us in this appeal. Here, the jury heard testimony describing

the relevant facts decided by the judgment in Father’s criminal case, and

the testimony about those facts was admitted without objection in the

civil trial about the termination of Father’s parental rights.

In trials to juries, it is the jury’s responsibility to evaluate and

decide what witnesses the jury chooses to believe. 23 On the jury’s findings

in this case, we must infer that the jury believed that Father engaged in

22See Tex. Fam. Code Ann. §§ 109.002(a) and 263.405(a); see also Tex. R. App. P. 26.1(b). 23See In re J.W., 645 S.W.3d 726, 745 (Tex. 2022).

13 acts of sexual abuse like those his children described. We must also infer

the jury believed Father’s testimony that he incurred a conviction for

continuous sexual abuse of a child and that he received a ninety-nine-

year sentence. Thus the information in the judgment is cumulative of

other evidence admitted without objection in the trial.

Accordingly, we need not decide whether the Family Code or the

Rules of Evidence provide the guiding rule on the question of whether the

judgment Father has complained about was (or wasn’t) admissible.24 We

conclude that admitting the judgment of Father’s criminal conviction was

harmless because it didn’t cause the rendition of an improper judgment.25

24Even though we have not reached Father’s issue, we recognize that several of our sister courts of appeal have done so. See In re A.N., No. 10-17-00006-CV, 2017 WL 2292171, at *3 (Tex. App.—Waco May 24, 2017, no pet.) (mem. op.); In re L.B., No. 05-13-01615-CV, 2014 WL 1102050, at *7-8 (Tex. App.—Dallas Mar. 20, 2014, no pet.) (mem. op.); In re W.B.W., No. 11-11-00269-CV, 2012 WL 2856067, at *14 (Tex. App.— Eastland July 12, 2012, pet. denied) (mem. op.); In re T.C.C.H., No. 07- 11-00179-CV, 2011 WL 6757409, at *9 (Tex. App.—Amarillo Dec. 22, 2011, no pet.) (mem. op.); Rian v. Tex. Dep’t of Family & Protective Servs., No. 03-08-00155-CV, 2009 WL 2341868, at *2 (Tex. App.—Austin July 31, 2009, pet. denied) (mem. op.). These courts would reject Father’s argument and hold that Father’s conviction was admissible in the trial of the case to terminate his parental rights because the offense for which he was convicted is on the laundry list of offenses listed in Family Code section 161.001(b)(1)(L). 25On appeal, Father does not challenge the legal and factual

sufficiency of any of the predicate findings to support termination, nor 14 Having overruled Father’s sole issue, we affirm the trial court’s order

terminating Father’s rights.

Conclusion

The order of the trial court is

AFFIRMED.

_________________________ HOLLIS HORTON Justice

Submitted on April 4, 2023 Opinion Delivered May 11, 2023

Before Golemon, C.J., Horton and Johnson, JJ.

does he challenge the finding that termination is in the best interest of the children. Accordingly, we do not address those grounds in our analysis. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003); see also Tex. R. App. P. 47.1. The unchallenged predicate findings are binding on this court and sufficient to affirm the termination order. See Int. of R.S.C., No. 09-19-00174-CV, 2019 WL 5996358, at *4 (Tex. App.—Beaumont Nov. 14, 2019, no pet.). 15