TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-09-00257-CV
Jesse Calderon and Marixza Melendez, Appellants
v.
Texas Department of Family and Protective Services, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
NO. D-1-FM-07-001748, HONORABLE STEPHEN YELENOSKY, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
A jury returned a verdict finding that the parental rights of appellants
Marixza Melendez and Jesse Calderon to their daughters J.C.C. and J.B.C. should be terminated, and
the trial court signed a final decree terminating appellants' parental rights in accordance with the
jury's verdict. Both Melendez and Calderon filed notices of appeal, but Melendez's appellate
attorney has filed a brief concluding that her appeal is frivolous and that there are no arguable
grounds for reversal of the trial court's decree as to Melendez's rights. (1) Calderon argues that the
evidence is insufficient to support the trial court's findings that he knowingly placed or allowed the
children to remain in conditions that or with people who endangered the children's well-being. See
Tex. Fam. Code Ann. § 161.001(1)(D), (E) (West Supp. 2009). He further argues that the evidence
is insufficient to support a finding that termination is in the children's best interest and that the trial
court erred in allowing testimony by J.C.C.'s therapist about a statement the child made about seeing
her parents using a "white powder." We affirm the trial court's decree.
Factual Background
Procedural history with the Department
At the time of trial in April 2009, J.C.C., born in September 2002, was six years old
and J.B.C., born in March 2006, was three. The children were taken into the Department's custody
in April 2007, about two years before the final hearing. (2) The Department first received a referral
concerning the family in November 2006, which alleged that Calderon and Melendez were using
drugs in the home and that R.M., Melendez's older son, had run away because he was afraid of being
punished physically for getting in trouble at school. The Department investigated and closed the
referral as "unable to determine." In January 2007, the Department received another report that the
parents were using drugs in the house, and in early April 2007, the family was ordered to participate
in services as a result of a juvenile court hearing involving R.M. On April 20, 2007, after Melendez
tested positive for opiates, the children were removed and placed with their maternal grandmother.
In late May 2007, the Department sought managing conservatorship over the children because
caseworkers had been unsuccessful in several attempts to contact the family, Calderon had not
submitted to a requested drug test, Melendez tested positive for cocaine and opiates, and the
children's grandmother admitted to the Department that the children were away from the house and
with their mother without supervision, which was a violation of the family's safety plan.
For the next two years, Melendez and Calderon largely attempted to comply with the
court ordered services, including parenting classes, drug abuse assessments, and drug treatment.
However, Calderon was jailed from August 2007 through March 2008 and again from May 15, 2008,
until June 5, 2008, when his probation was revoked. While Calderon was incarcerated, Melendez
relapsed into cocaine addiction and then became addicted to heroin and dropped out of contact with
the children and the Department for several months. On October 8, 2008, the parties entered into
a mediated settlement agreement under which the children were returned to Calderon under the
condition that Melendez could not have contact with the children until she had complied with several
drug-related conditions. The children were returned to Calderon's care on October 31, but on
November 1, a Department supervisor saw Calderon drive the children to a store's parking lot, where
he picked up Melendez. He then drove to another store and went inside, leaving the children alone
with Melendez for about five minutes, in violation of the settlement agreement. He came out of the
store and drove off with the children and Melendez; the Department supervisor followed for a few
minutes before abandoning her surveillance. Two days later, the Department had the children
removed from Calderon's care for his violation of the settlement agreement and decided to abandon
reunification efforts and instead seek termination of the parents' rights to the children.
Calderon's criminal history
The testimony and evidence established that Calderon had a criminal history dating
back to 1997, when he was convicted of conspiracy to commit illegal investment and use of a
communication facility to commit a felony. Both charges were related to his 1994 involvement in
the sale of cocaine, and Calderon was incarcerated from June 1996 until August 1998 for those
charges. (3) In June 2001, Calderon pled guilty to a February 2000 charge of cocaine possession and
was placed on deferred adjudication. (4) In January 2006, Calderon obtained a doctor's DEA number
and attempted to obtain fraudulent prescriptions for cough syrup with phenergan. He was charged
with possession of a controlled substance by fraud and placed on deferred adjudication. (5)
In February 2007, police officers went to the residence to serve unrelated arrest
warrants on Calderon and Melendez. When the police entered the residence, they saw marihuana
paraphernalia in plain view, so they left the house and called the narcotics division to obtain a search
warrant. When the warrant was obtained, the police searched the house and found marihuana in a
jar stuffed between couch cushions, two water pipes on a coffee table, a handgun in plain view on
a sofa or chair cushion, marihuana in a plastic bag in a dresser drawer, magazines and books related
to marihuana use and cultivation, body armor, smoke bombs, bullets, a money-counting machine,
three scales, and other items often related to the sale of marihuana. At the time of the search, J.C.C.
and J.B.C. were living in the house with Calderon, Melendez, and R.M., and an officer testified that
he remembered that one child was present at the time of the search. Calderon was charged with
misdemeanor possession of marihuana and unlawful possession of a firearm; he pled nolo contendere
to drug possession and the firearm charge was dismissed. Although Calderon admitted to using
marihuana and prescription drugs, he denied using drugs in front of the children. Calderon testified
that although most of the items seized in the February 2007 search were his, the drugs and handgun
were not in plain sight as the police testified and as portrayed in the Department's photographic
exhibits. He said that the water pipes and handgun were hidden at the top of the entertainment
cabinet, out of the children's sight and reach, and that the jar of marihuana was hidden in his dresser
drawer, not wedged between sofa cushions. In June 2007, after his plea of nolo contendere on the
marihuana charge, Calderon's 2001 deferred adjudication for cocaine possession was revoked, his
guilt was adjudicated, and he was imprisoned from August 2007 until March 2008. (6) He was released
in late March but reimprisoned from May 15 until June 5, 2008, when he was kicked out of the house
where he had arranged to live.
In March 2009, Calderon was accused of theft. It was alleged that on March 9, 2009,
he went to Wal-Mart and stole a flat-screen television, walking past security without having paid for
the television, and that he returned with Melendez on March 14, attempting to do the same thing
before being stopped as he left the store. The Department presented testimony by the Wal-Mart loss-prevention officer who detained Calderon and Melendez after the second attempt and a video of
security footage showing the store's exit. In the first theft, Calderon was stopped by an employee
stationed at the door and asked for a receipt. Calderon went back inside, but then left with the
television while the employee was assisting another customer. The second time, the loss-prevention
officer recognized Calderon from footage of the first theft, and Calderon was taken into custody as
he tried to leave the store with the television. Calderon pled guilty to misdemeanor theft related to
the first incident and entered into a plea agreement under which he received one year of probation,
community service, and a fine. He admitted that he sold the first television to a friend for $400 but
denied that he was attempting to steal a television the second time, saying that Melendez wanted to
get the television for her mother and asked him "to put it on lay-away." The loss-prevention officer,
however, testified that the Wal-Mart did not have lay-away.
In addition to the March 2009 thefts, the Department alleged that Calderon committed
or attempted to commit theft in December 2006, when he went to Wal-Mart with R.M., who was
thirteen at the time. The Department alleged that Calderon and R.M. went to a self-checkout line
but did not scan all of the items in their cart. As they left, security detained R.M. and told Calderon
to stop. Calderon fled and drove away, leaving R.M. behind; R.M. was charged with theft. Calderon
denied knowing that R.M. was shoplifting and said he ran because he was scared and did not want
to get in trouble because he was on probation. Calderon was not charged in relation to the incident.
The Department also presented testimony by an Austin Police detective assigned to
the Major Crimes Task Force, who testified that from 1999 through 2003, the task force conducted
an investigation into a violent prison gang. During the investigation, the unit tracked members of
the gang, including a confirmed, high-ranking member who "had contact with" Calderon several
times in 2003 at a jewelry store co-owned by Calderon. The detective also testified that there was
"some information" Calderon was involved with cocaine distribution but that he was never arrested
or charged in conjunction with the investigation. Calderon was asked about a February 2004 robbery
of the family's home. Calderon said that at the time, he was earning approximately $40,000 a year
at his jewelry store, Melendez was not working, and the robbers took property worth about $300,000,
including more than $8,000 in cash, several pieces of expensive jewelry, and six designer-name
purses. Calderon and Melendez explained that although the jewelry was very valuable, Calderon
bought it for substantially less than its market value due to his involvement in the jewelry business.
Melendez's drug use
Melendez admitted that she had a drug problem until shortly before trial. Melendez
was born in 1975 and testified that she started using cocaine when she was nineteen and used it until
she was arrested at twenty-three. She stayed off of drugs "for the most part" while she was on
probation for more than six years, until April 2007, relapsing occasionally. The children were
removed in May 2007, after Melendez tested positive for cocaine. Throughout the summer of 2007,
Melendez stayed off of drugs except for one relapse, but in late September or early October 2007,
while Calderon was incarcerated, she began to use cocaine regularly again, snorting and injecting
it about every other day. Her cocaine use continued until February 2008, when she started injecting
heroin. She soon was using about $200 of heroin, five or six injections, a day; she lied to and
borrowed from her father to support her habit. She sought treatment a few times, but kept relapsing
until June 2008, when she was admitted into a program that uses methadone for treatment.
Melendez testified that she last used cocaine in early 2008, that she last used heroin on
September 1, 2008, about seven months before trial, and that she sometimes smoked marihuana.
Although Calderon downplayed his knowledge of Melendez's drug abuse, testifying
that he began to think "maybe she was on drugs," there was evidence that he knew she was a drug
addict in at least late March or early April 2008, shortly after he was released from custody for parole
violations, when he was informed by the Department that Melendez was not allowed to have
unsupervised contact with the children. In June 2008, after he was released from his second
incarceration for parole violations, he called 911 to report that Melendez had taken his car without
his consent shortly before he was incarcerated. A police officer testified that Calderon informed the
police that Melendez was a drug user and that they should look for the car at a certain "drug house."
Calderon denied telling the police that the car was likely parked at a drug house and said only, "I said
I believe that she might have been on drugs."
Other evidence related to the children's welfare and best interests
J.C.C.'s therapist testified that J.C.C. told her that Calderon and Melendez used drugs
and that she had seen "white powder" on a table. J.C.C. said that when her parents used drugs, they
acted "weird." J.C.C. would get a headache and would go to her room. A caseworker testified that
in late October 2008, J.C.C. said that Calderon had told her to "lie to you about certain things," such
as seeing Melendez, "because you [the caseworker] hate her." Further, there was evidence of six
domestic disturbances between Calderon and Melendez, dating back to 2001 and as recently as
March 2009. Police officers testified to reports of loud arguments or violence, on one occasion made
by R.M., and said that when they responded, Melendez denied being assaulted, despite physical signs
that violence might have occurred. Calderon and Melendez downplayed those incidents, explaining
that they were just loud arguments or misunderstandings and not physically violent fights.
The Department presented testimony by a counselor who Calderon saw several times
until therapy was discontinued because Calderon stopped attending scheduled sessions. The
therapist testified that Calderon "owned very, very little of his history," never took responsibility for
his involvement in the children's removal, and made no progress over the course of his sessions with
her. Asked to write a letter explaining his situation, he said that he regretted not being available to
J.C.C. and R.M. because he "worked a lot" and "should have made more time" for them and because
he "tried to replace material things for my being gone all the time" with work. He did not take
responsibility for his behavior and seemed to blame "this whole nightmare" on R.M.'s behavior
starting when he turned thirteen and began to get in trouble with the law. She testified that Calderon
was "a threat to all children due to his criminal and drug history and his complete lack of
accountability," saying, "[W]ould you allow your children to be around someone with that extensive
of a criminal history? Would you leave your children in that person's care? Can you imagine
putting your children or your grandchildren in that person's care even for two days? And if the
answer is no, then that's why I wrote that. That's my assessment of him."
In addition to testimony about Calderon's immediate violation of the settlement
agreement upon the return of the children to his care, in 2008 Calderon lied to the Department about
his continuing involvement and contact with Melendez. On September 12, 2008, Calderon testified
at a permanency review hearing that he had not had recent contact with Melendez, but in
August 2008, Department employees saw Melendez drive Calderon in his car to a Department office,
where she dropped him off for a visit with the girls and picked him up afterwards. The two then
drove to his apartment, got out of the car, and went into the apartment together.
Department caseworkers and the children's CASA volunteer testified that they
believed it was in the children's best interest for Melendez's and Calderon's parental rights to be
terminated so that the girls could be adopted and have a sense of permanancy in their lives. The
CASA volunteer testified that he believed Melendez had an on-going drug problem that she was
struggling to address and that Calderon did not intend to raise the children without Melendez, the
combination of which put the children at risk should they be returned to their parents' care.
Finally, Melendez admitted that she believed it had endangered the children "to allow
Jesse Calderon to use and keep drugs in the home where your children lived." During Calderon's
testimony, the following exchange took place:
Q: And do you agree with me that every time you commit a crime you put yourself
at risk of having to leave [the children's] lives because of incarceration?
A: Yes, ma'am.
Q: Do you agree with me that that creates a condition that endangered their physical
and emotional well-being?
. . . .
Q: And your pending theft charges are from a March 14th, 2009, incident?
A: Well--
Q: So therefore, you are facing--I am not saying you are getting, but you are facing
possible incarceration?
A: Yes.
Q: And so is Marixza?
Q: And doesn't that endanger your children?
Q: Who is going to take care of your children when you are locked up?
A: I don't know.
Standard of Review
Calderon argues that the evidence is insufficient to support the jury's findings that
there were statutory grounds for termination or that termination was in the children's best interest.
He also complains that the trial court erred in allowing J.C.C.'s therapist to testify about the child's
statement that she saw white powder on a table.
To terminate a parent's rights to his children, which are of constitutional dimension,
In re J.W.T., 872 S.W.2d 189, 194-95 (Tex. 1994), the fact-finder must find clear and convincing
evidence that (1) the parent has engaged in the conduct set out as statutory grounds for termination
and (2) termination is in the child's best interest. In re C.H., 89 S.W.3d 17, 23 (Tex. 2002); see Tex.
Fam. Code Ann. § 161.001. "Clear and convincing evidence" is the level of proof required to
produce a firm belief that the Department's allegations are true. C.H., 89 S.W.3d at 23. In
reviewing a best-interest determination, we consider: the child's wishes, her emotional and physical
needs now and in the future, emotional or physical danger posed to the child now and in the future,
the parenting skills of those seeking custody, programs available to assist those seeking custody to
promote the child's best interest, plans for the child's future, the stability of the home, any conduct
by the parent that might show that the existing parent-child relationship is improper or harmful, and
any excuse for that conduct. Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976).
We review legal sufficiency by viewing all of the evidence in the light most favorable
to the fact-finder's determination and asking whether a reasonable fact-finder could have formed a
firm conviction that its finding was true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We assume
that the fact-finder "resolved disputed facts in favor of its finding if a reasonable factfinder could do
so" and we disregard evidence "that a reasonable factfinder could have disbelieved or found to have
been incredible." Id. Issues related to witness credibility, meaning questions that turn on a witness's
appearance or demeanor, are left to the fact-finder's determination as long as its determination is
reasonable. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (quoting Southwestern Bell Tel. Co. v.
Garza, 164 S.W.3d 607, 625 (Tex. 2004)). If the evidence is legally sufficient, then we review
factual sufficiency. Evidence is factually insufficient only if "a reasonable factfinder could not have
resolved that disputed evidence in favor of its finding" and if "the disputed evidence that a
reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder
could not reasonably have formed a firm belief or conviction." J.F.C., 96 S.W.3d at 266.
A trial court's decision to admit or exclude witness testimony is reviewed under an
abuse of discretion standard. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex.
1998); Taylor v. Texas Dep't of Protective & Regulatory Servs., 160 S.W.3d 641, 652 (Tex.
App.--Austin 2005, pet. denied). An abuse of discretion occurs if the trial court acts unreasonably
or arbitrarily, without reference to guiding principles. Malone, 972 S.W.2d at 43 (quoting City of
Brownsville v. Alvarado, 897 S.W.2d 750, 754 (Tex. 1995)). We will uphold a trial court's
admission or exclusion of evidence unless (1) there was no legitimate basis for the court's ruling,
and (2) the error probably caused the rendition of an improper judgment, id., and will sustain a trial
court's decision to admit or exclude evidence if it is correct under any applicable legal theory, see
Madrigal v. Soliz, No. 13-02-00465-CV, 2004 Tex. App. LEXIS 7990, at *3 (Tex. App.--Corpus
Christi Aug. 31, 2004, no pet.) (mem. op.) (citing Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim.
App. 1990)). See also Markel Ins. Co. v. Muzyka, 293 S.W.3d 380, 385 (Tex. App.--Fort Worth
2009, no pet.) ("regardless of the reasoning employed by the trial court . . ., if the trial court reached
the correct result, we will affirm its ruling"); In re H&R Block Fin. Advisors, Inc., 262 S.W.3d 896,
899 (Tex. App.--Houston [14th Dist.] 2008, orig. proceeding) ("Because a trial court cannot abuse
its discretion in reaching a correct result for the wrong reasons, we will uphold the trial court's order
on any ground supported by the record.").
Discussion
First, we address Calderon's complaint that the trial court erred in allowing J.C.C.'s
therapist to testify that J.C.C. told her she saw "white powder" during a discussion about whether
J.C.C. knew that her parents used drugs.
Hearsay evidence is inadmissible unless it falls within an exception provided by the
rules or a statute. Tex. R. Evid. 802. One exception is that a hearsay statement made "for purposes
of medical diagnosis or treatment" may be admissible, Tex. R. Evid. 803(4), provided that (1) the
declarant knew that the statement was made for the purpose of receiving treatment, and (2) the
substance of the statement was pertinent to the treatment or, in other words, the kind of information
reasonably relied on by a medical professional for treatment or diagnosis. See Taylor v. State,
268 S.W.3d 571, 589, 591 (Tex. Crim. App. 2008). Further, even if otherwise inadmissible, the
family code allows the admission of a child's hearsay statement describing alleged abuse against the
child if there are sufficient indications of the statement's reliability and the child testifies or is
available to testify or the court finds that the statement should be used in lieu of the child's testimony
to protect the child's welfare. Tex. Fam. Code Ann. § 104.006 (West 2008). "Abuse" is defined as,
inter alia, a genuine threat of substantial harm from physical injury or a person's "current use" of a
controlled substance so as to physically, mentally, or emotionally injure a child. Id. § 261.001(1)(C),
(I) (West 2008).
J.C.C.'s therapist testified that during play therapy, J.C.C., who was about four and
one-half years old, pretended that "she was being arrested for drugs that she did, that she did use
drugs and she had found them on the--on the sidewalk. They made her feel weird and that--then
a baby had used the drugs and it killed the baby." The therapist later returned to the subject, telling
J.C.C., "we are being serious now. I have to know, did you ever use drugs?" J.C.C. said she had
not but that "her parents did use drugs and she recalled seeing some white powder," indicating that
she had seen the powder on a table. When the therapist asked how J.C.C.'s parents acted when they
used drugs, J.C.C. said they "would act weird" and that it caused J.C.C. to "always get a headache,
so she would go into her room." Before allowing the testimony, the trial court held a hearing outside
the jury's presence. During that hearing, the trial court heard testimony from the therapist about the
context in which J.C.C. made the statement. The therapist testified that she believed J.C.C. provided
truthful information and that it would "[a]bsolutely not" be in J.C.C.'s best interest to have to testify
in open court about seeing her parents use drugs.
We agree with the trial court that the therapist's testimony about J.C.C.'s statement
about white powder was admissible. The therapist testified that she stressed the importance of J.C.C.
telling whether she had used or seen her parents use drugs and that she believed J.C.C. was truthful
in her responses, and there is no indication in the record of evidence to negate the child's awareness
that her therapist needed accurate information and that being truthful was in her best interest. See
Taylor, 268 S.W.3d at 589. Finally, the statement was made in the context of therapy. See id. at
591. Thus, the trial court would not have abused its discretion in admitting the statement under rule
803(4) of the rules of evidence.
Further, a hearsay statement about abuse, which is defined to include a parent's drug
use that causes physical, emotional, or mental harm to a child, see Tex. Fam. Code Ann.
§ 261.001(1)(I), is admissible if the trial court decides that the child's best interest would be best
protected by allowing the statement into evidence. Id. § 104.006(2). J.C.C.'s statement to her
therapist was about her witnessing her parents using drugs, which she said gave her a headache. The
therapist also testified that J.C.C. would likely not have remembered an event from many months
earlier unless it was significant and had a "big emotional impact on her." The therapist further
testified that it would be harmful to J.C.C. for her to have to come to court to testify about what she
had seen. Thus, the trial court would not have abused its discretion in admitting the evidence under
section 104.006. (7) We overrule Calderon's fifth issue.
We next evaluate the sufficiency of the evidence supporting the jury's
determination that there were statutory grounds for termination and that termination was in the
children's best interest.
Disregarding evidence of Calderon's criminal history or domestic disturbances that
occurred before one or both of the children were born, there is legally and factually sufficient
evidence to support the jury's findings that statutory grounds for termination existed. Calderon was
in prison from August 2007 through March 2008 and again from May 15, 2008, until June 5, 2008.
Those prison terms were due to Calderon's ongoing criminal activity or violations of parole terms.
During his time in custody, Melendez's drug addiction worsened, resulting in the children's removal
and placement in the Department's custody. Calderon knew or reasonably should have known that
Melendez was struggling with drug abuse but took no steps to protect the children from neglect, such
as finding another place for them to live. There was evidence that Calderon continued to be involved
in criminal activity up until very recently before trial and that he may have involved his teenage
stepson in an attempted theft. Calderon's therapist testified that he never took responsibility for the
children's removal or for his own bad actions, and she believed that his lack of accountability made
him a danger to children in his care. The police raid in February 2007 found drugs and a handgun
in the house Calderon shared with the girls; the officers testified that the drugs, drug paraphernalia,
and weapon were found in plain sight and within reach of children, not hidden away as Calderon
insisted. Although charges were generally never brought, the police were called to the family's
residence at least four times to respond to complaints of loud arguments or domestic disturbances.
The day after Calderon was given custody of the children pursuant to the mediated settlement
agreement, under which he agreed not to allow Melendez to have visitation unless approved and
supervised by the Department, Calderon drove the children to a store, where he allowed Melendez
to get into the car and sit alone with the girls for some time. Finally, both Melendez and Calderon
testified that they believed their behavior had endangered the children's well-being.
Viewing the evidence in the light most favorable to the jury's determination, we
conclude that the jury could reasonably have reached a firm belief that Calderon knowingly placed
or allowed the children to remain in conditions or with someone whose conduct endangered their
well-being. See id. § 161.001(1)(D), (E); J.F.C., 96 S.W.3d at 266. Similarly, considering the
record as a whole, we cannot conclude that a reasonable jury could not have resolved the disputed
evidence in favor of its determinations. See J.F.C., 96 S.W.3d at 266. We overrule Calderon's
first three issues.
As for the best-interest determination, there was testimony from J.C.C.'s therapist,
the CASA volunteer, the CASA volunteer's supervisor, and the Department caseworker that
termination was in the children's best interest and that the children need stability and finality, are
very adoptable, and should not be left lingering in the foster system any longer than they already
have. Although Calderon's most recent run-in with the law resulted in a plea bargain that did not
require jail time, his on-going criminal activity could put the children at risk for further upheaval
should the next incident result in a prison sentence. Finally, the children's attorney ad litem
recommended termination. The evidence is legally and factually sufficient to support the jury's best-interest determination, and we overrule Calderon's fourth issue.
Conclusion
We have concluded that the evidence is sufficient to support the jury's determinations
that there were legal grounds for termination of Calderon's rights and that termination was in the
children's best interest. Further, we have held that the trial court did not err in allowing J.C.C.'s
therapist to testify about J.C.C.'s statement related to seeing "white powder."
Finally, Melendez's attorney's brief presents a thorough and professional evaluation
of the record and discusses and demonstrates why there are no arguable grounds for reversal. A copy
of the brief was delivered to Melendez, who has neither sought other counsel nor filed a pro se brief.
Having conducted an independent review of the record, we agree with Melendez's attorney's that
her appeal is frivolous.
We affirm the trial court's decree terminating Calderon's and Melendez's
parental rights.
__________________________________________
David Puryear, Justice
Before Justices Patterson, Puryear and Henson
Affirmed
Filed: June 11, 2010
1. Texas courts have held that it is appropriate in a parental termination case to file a brief
asserting that the appeal is frivolous. See, e.g., Matthews v. Texas Dep't of Protective & Regulatory
Servs., No. 03-04-00184-CV, 2005 Tex. App. LEXIS 1231, at *2 (Tex. App.--Austin Feb. 17, 2005,
no pet.) (mem. op.).
2. Melendez has four older children who are not part of this proceeding.
3. Calderon argues that any criminal involvement before the two children were born is
irrelevant to whether his rights should be terminated. Although we agree that criminal acts that
occurred before the children were born could not be used as the main basis for terminating his rights,
we believe that such conduct is relevant to our consideration because his prior convictions could be
used to enhance any later criminal sentences and because his criminal history is relevant in
evaluating the appropriateness of his choices and lifestyle.
4. Calderon testified that the drugs were not his but that he was advised to plead guilty due
to his criminal background.
5. Calderon was also charged with assaulting Melendez in 2004 and with assaulting the aunt
of Melendez's other children in 2007, but those charges were dismissed.
6. Calderon was adjudicated guilty and sentenced to two years' imprisonment due to his plea
of nolo contendere and because he failed to report for a probation appointment, do his required
community service hours, or pay his required fees and court costs. In July 2007, Calderon's deferred
adjudication was also set aside in the case involving the attempt to get fraudulent prescriptions, and
he was sentenced to fifty-nine days, running concurrent with the sentence for cocaine possession.
7. Further, even if the trial court had erred in admitting the evidence, considering the overall
weight of the evidence, Calderon has not shown that the evidence related to J.C.C. seeing "white
powder" probably caused the jury to return an improper verdict. See Owens-Corning Fiberglas
Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998).