*1 SILVA, Maria Emma as next friend of child, Appellant, a minor ENZ, individually
Linda Adminis David tratrix Estate of Veston deceased, Enz, as next friend of Enz, a minor Jason Charles child and Enz, Charles a minor indi Jason vidually, Appellee.
No. 13-91-652-CV. Texas, of Appeals Court Corpus Christi.
April 29, 1993. Rehearing May Overruled *2 Garcia, Ramirez,
Jose E. Garcia & McAl- len, Joy Soloway, Fulbright Jaworski, M. & Houston, appellee. for SEERDEN, KENNEDY, Before HINOJOSA, Jr., FEDERICO G. JJ.
OPINION
SEERDEN, Justice. appeal This an from paternity suit. Silva, as daughter Maria next friend of her brought appellant, this seek- action Enz, to establish that David Yeston deceased, biological is E.L.S.’s father. The trial entered in favor of son, appellee Enz’s minor and the trial, remaining upon defendant at based jury’s failure find that Enz was E.L.S.’s biological appeals, raising father. Silva six points complaining of error about the sufficiency and factual of the evidence and court’s excluding the trial action in evidence a final in a related law- whereby the suit court found Silva that Mr. was not the affirm trial court’s five, By points through one com- Silva plains sufficiency about of evidence supporting the only question answer jury. question submitted to the sub- mitted to the find that “[d]o Enz David Veston was the The jury “no.” answered [E.L.S.]?”. argues conclusively that the evidence as a Enz established matter of law that and, was the alter- native, jury’s con- answer was so trary to of the overwhelming weight clearly wrong evidence as to be mani- festly unjust. argues jury’s that the find Enz as failure to passion preju- father was result of disregard in total evi- dice and was presented. dence appellant an the le When attacks gal sufficiency issue a failure to find an proof, which he had the burden of he appeal evi must demonstrate conclusively vital established all Martinez, Pena, R. support Ruben Barrera & facts the issue as a matter Pena, Hearn, Jones, Marathon Oil Harlingen, Michael Sterner E. law. Galligan Weslaco, Key, appellant. reviewing & for In biological father. She contends challenge, the child’s matter we of law” an “as pre- contrary there was two-step analysis. Initially, we conduct sented. supporting the record for evidence examine find, ignoring evi failure to while all testify only witness to *3 Id.; Holley contrary. to the see also Silva, mother. The E.L.S.’s Maria Emma 694, (Tex.1982). Watts, 629 S.W.2d 696 v. Enz met trial showed that Silva evidence at support Secondly, if there is no evidence to he arrived soon after at Clinica Familiar Su find, the we then examine the failure working and Enz there in 1973. She was determine whether entire record to met, they a doctor on staff. When was matter of is as a proposition established other both married to and Enz were Silva 690; Sterner, 767 S.W.2d at McGalli law. Enz hav- explained that was people. Silva Kuhlmann, 694, 722 696-97 ard v. S.W.2d marriage and she be- in his trouble (Tex.1986). proposition is contrary If the together brought them issue lieved evidence, conclusively by the established separated in they then fell love. Silva and Meyerland will be sustained. Silva, husband, early in Noe 1975 from her Improvement v. Tem Community Ass’n see Enz. and continued to 263, (Tex.App 267 ple, 700 S.W.2d . —Hous husband, in from her separated While 1985, writ ref’d ton [1st Dist.] 1976, testified that she be- January Silva is alternative contention child. knew pregnant with Enz’s She came jury’s finding, upon which she had only Enz’s child because the that it was proof, great the burden is had were Enz. sexual relations she weight preponderance and approximately two months year, Later that requires applicable The standard of review birth, Hous- Enz moved to before E.L.S.’s us to examine the entire record to deter and her husband ended their ton and Silva supports some mine whether evidence certificate, bap- separation. E.L.S.’s birth find, determine, light then in failure to and records, records list Noe tismal and school record, whether the failure to find is of the father. Silva as E.L.S.’s manifestly unjust. Traylor Goulding, Enz was the testified that David (Tex.1973). 945 We heed although married she was supreme admonishment that we court’s conception the time of to Noe Silva. at jury mindful that the was not birth, that Enz Silva stated After E.L.S.’s by preponderance on the issue convinced although and he helped support Herbert, 754 of the evidence. Herbert v. Houston, telephoned her and he moved (Tex.1988). 144 is S.W.2d Reversal Silva introduced talked to E.L.S. great weight warranted when Enz she claimed letters into evidence which supports an affirmative an recognized E.L.S. to her in which he wrote Croucher, Id.; swer. Croucher During daughter.” cross-examina- as “our S.W.2d tion, questioned about she was when letters, acknowledged that one of the general
The rule is that the trier of she other, though jury, judge is the sole no date while the in this case the letters had day, showed no the month and credibility of the witnesses and the dated with testimony. year. weight given their Gar Machines, Dependable cia v. Shell Core relationship about her Silva also testified
Inc.,
(Tex.App
. —Cor
mar-
They have been
with her husband.
writ).
resolving
In
pus
Christi
children,
six
two
thirty years and have
ried
conflicts,
may
jury
contradictions and
ad-
after E.L.S. Silva
of which were born
all, part,
none of the
to believe
choose
have al-
her husband
mitted that she and
arriving
in
at
testimony
any one witness
par-
ways
themselves as
credited
the most rea
finding
it concludes was
Also,
by this law-
stated that
ents.
the evidence. Id.
sonable under
suit,
seeking
have E.L.S.’s
she was
Enz as the
reflect
clearly,
changed to
testified
documents
Silva contends that she
biological pointedly that Enz was
unequivocally, and
testimony
The
of an
that the trial court did not err
interested
may
witness
establish a fact as a matter of
clear, direct,
if
law
judg
To
reversal of
obtain
positive,
there are no
circum
ment based on error
the admission or
tending
impeach
stances
to discredit or
it.
evidence, appellant
exclusion of
must show
Corp.,
See
Brine
v. Texas
Lofton
ruling
that the trial court’s
error
(Tex.1989). Additionally,
and that the error
calculated to cause
necessary
negate by
one side
for
im
did cause rendition of an
present
affirmative evidence
proper judgment.
Liberty
Gee v.
Mut.
ed
the other
side.
free
Fire Ins.
simply disbelieve such evidence. McInnes
1989);
81(b)(1).
Tex.R.App.P.
Reversible
*4
704,
Corp.,
v. Yamaha
659 S.W.2d
Motor
usually
appel
error does not
occur unless
1983),
(Tex.App. Corpus
708
Christi
aff'd,
—
lant
that the
on
can demonstrate
case turns
denied,
(Tex.1984),
Petroleum Co. v. judgment final the earlier (1960)). Tex. 338 S.W.2d for attempting suit. Silva’s reason to in- Moreover, is free jury reject the to an judgment previous troduce the was be- interested witness’s uncorroborated testi opposing brought up cause is- counsel the mony based its observation of the sue of nonpaternity Mr. Silva’s or demeanor, attitude, witness’s and similar during opening voir dire and his statement. reproduction incapable factors in the prior judgment Silva contends that at written record. Id. competent opposing evidence to rebut coun- argues appeal sel’s statements. Silva on carefully reviewing After the evi by jury’s that refusal to find Enz was dence, we that it was not conclude error for biological jury E.L.S.’s neces- jury to find that Enz fail to was the sarily Mr. concluded that Silva was the biological Silva’s uncor disagree father. with Silva clear, direct, roborated was not testimony jury necessarily reached this con- positive, and and there were circumstances clusion. tending impeach or to discredit her testimo
ny. No witness other than Silva authenti Appellee objected at trial to the handwriting. cated Additionally, Enz’s we judgment prior admission of the which dis note that there were blood tests taken established Mr. Silva E.L.S.’s relating to the case. Silva’s did Appellee’s objection was that the biologi not establish that Enz was E.L.S.’s ability judicially court was without Additionally, cal father as of law. a matter judgment proceeding notice a from another jury’s finding we conclude that the was not party. was not Appel- to which his client great weight preponder lee asserted he was a that ance as to manifestly of the evidence earlier should not be bound points unjust. through We overrule one by any way. parties it in Since five. issues in the case us were not identi before six,
By point
parties
Silva contends that the trial
cal to the
and issues in
prior
case,
excluding from
prior judgment
court erred
evidence a
is inadmissable.
related
order from
case which See John
v. May,
Deere Co.
the court
(Tex.App.
found that
husband was
de
writ
— Waco
nied).
father. We
conclude
Appellee
argues
appeal
that
the mother’s husband is the child’s
also
relevant,
prevent
and then
the child from
that
argument
offering
relevant,
rebutting
judi-
that
greatly
prejudicial
if
its
effect
scientifically accepted pa-
decree that
cial
outweighed
probative
its
value. Relevant
ternity
proven
the mother’s
tests have
having any
means
ten
the child.
husband is not the
dency to
fact
make the existence
consequence
is of
to the determination of
opinion
majority
would allow the
probable
probable
or less
the action more
illegiti-
courts of this State to hinder an
than it would be without
attempt
mate child’s
to establish a
Tex.R.Civ.Evid. 401. The trial court has
relationship
his or her
fa-
on the
the discretion
exclude evidence
ther;
relationship
gives
the child
prejudice,
logical
despite
basis of unfair
its
rights
affirmatively
should
that the State
Appeals,
relevance. Flores v. Fourth Court
protect.
act to
I would hold that the final
(Tex.1989);
CNA
lawsuit,
judgment in
7
the related
establish-
Scheffey,
Co.
ing that Mr. Noe Silva is not the father of
denied);
(Tex.App.
placed
— Texarkana
is relevant
issues
before
therefore,
403. We
review
Tex.R.Civ.Evid.
and is admissible under Tex.Fam.
the record
determine whether the trial
12.02(b)(Vernon Supp.1993)
Code .Ann.
*5
court committed error and if so that the
presumption
rebut the
that E.L.S. was Mr.
reasonably
error was
calculated to cause
Accordingly,
child.
I would sustain
did cause
an im
rendition of
error,
appellant’s
sixth
of
reverse the
Gee,
proper judgment.
to Mr. Silva at the time. going the child to believe that that is argument: opening stated in marriage. why That’s the law is you only thing I think see that the will way it is. You can’t have two fathers. you going hearing is the testi- arguments appellees Given the mony lady of a whose motives are com- trial, I find that the evidence adduced at pletely questionable, who admits to adul- denying appellant right produce com- tery, attempting who is here to have the petent rebutting most critical interest in the of Tex- State reasonably paternity was error calculated completely wiped away, as and that is to to cause and did cause the rendi- illegitimacy creating opposed create improper judgment. Tex. tion of an legitimacy. R.App.P. 81(b)(1). appel- I would sustain The Court will tell in the instruc- error, judg- lant’s sixth reverse here, girl, tions that this little as she sits court, and remand the ment of the trial has a father. Her father is Noe Silva. case for a new trial. father, says The state she has a that Noe above, respect- the reasons stated For Silva is her because the evidence fully dissent. will demonstrate she was born of a mar-
riage. When she was conceived her
mother was married Noe Silva.
[*] [*] [*] [*] [*] [*] you I think need to aware of the they fact that have a burden to try paternity by and establish a certain standard, forget we can’t Noe about Sil- FITNESS, INC. and PROMAXIMA va, today because Noe Silva is the father. Leppke, Appellants, Bob exists and is created law, they produce must that ways
he is not. There is certain KEENER, Sherry Appellee. they can do that. The Court will No. 01-92-00766-CV. you ways as to what are. instruct those Texas, you you Appeals submit to that after hear all Court of (1st Dist.). pro- of the evidence and after the Court Houston instructions, you vides April right, going to find that law what’s Noe Silva is the and that presumption. they cannot overcome closing argument: stated in