*1 part Williams, Payne, Id. judgment. inquiry Our under See 940 S.W.2d at to the error limited whether equivalent the rule is now at 237. The latter two are improper judgment. “reducing risk” resulted an only if the unreasonable warning” equates adequate an “providing ANALYSIS HARM “eliminating risk” the unreasonable any charge harm say error was reasonably We equates “making the condition impossible are, for TxDOT to they less because it was safe.” Unless Court reasonably it the condition make given us eliminate has two different tests to determine safe, i.e., could not remove the water entity protect TxDOT governmental if a failed to amount of from road or reduce the water Assuming special defect. Thus, only question was over the road. single two con- there is a test that the the risk adequately reduced equivalent, whether TxDOT cepts are we the court’s find that amount presented by the hazardous guided of harm “negligence” correctly definition of Because the evi Payne, of water over the road. jury under the facts of this case. that the barricades dence is uncontroverted at 237-38. place, could have found were not charge, given, as was cor- and when ordinary care to that TxDOT had not used today, Id. If rect. the case were tried adequately the unreasonable risk of reduce required give court would be harm at the time the victims encountered Williams, Williams-type instruction. shown, roadway. we over the As water say if 584r-85. Even we were to equivalent that TxDOT this is charge that a different should have been adequate warning. provide an did not given, we would find the failure to do so circumstances, we find the fail these limited Tex.R.App. P. 44.1. harmless. Williams-type language ure add the NEW RuLE harmless. appellate The just-repealed rules of charge we find the was either Because procedure provided: or, incorrect, correct if the error was harm- ap- judgment No shall be reversed less, six. points we overrule five and We any peal and a new trial ordered cause judgment. affirm the ground on the the trial court has committed an error of law in the course of trial, unless the court shall be opinion complained that the error such
amounted to a denial appellant as calculated probably to cause and did cause rendition case,.... judgment in improper of an Tex.R.App. 81(b)(1) (repealed). P. The cur- SPANGLER, Appellant, Thomas Edward provides: rent rule judgment may appeal No be reversed on ground TEXAS DEPARTMENT OF PROTEC
on the that the trial court made an appeals AND REGULATORY SER error law unless the court TIVE VICES, Appellee. complained of: concludes that the error (1) probably the rendition of an caused No. 10-97-210-CV. judgment,.... improper Texas, Tex.R.App. 44.1(a)(1). The rule no P. revised Waco. (a) longer requires that we find both complained of amounted to such deni- error Feb. rights of rea- appellant al of the as was sonably an calculated to cause rendition of (b) judgment the error
improper improper cause of an probably did rendition *2 C.J., DAVIS, and CUMMINGS
Before VANCE, JJ.
OPINION
DAVIS,
Justice.
Chief
Department
Appellee,
of Protec
the Texas
(“DPRS”), filed
Regulatory
Services
tive
appel
parental rights of
suit to terminate the
lant,
respect
Edward
Thomas
grounds
As
for termi
daughters.
to his two
(1)
nation,
alleges
Spangler:
that
DPRS
his
knowingly
knowingly
or
allowed
placed
in
or surround
children to remain
conditions
emo
ings
endangered
physical
or
which
(2)
well-being;
engaged in
or
tional
conduct
persons
knowingly placed his children with
endangered
engaged
who
in conduct which
well-being of the
physical
or emotional
(3)
children;
support
failed to
the children
ability during period of
accordance with
year;
termination of the
one
relationship
parent-child
would be in the best
interest of
children. Tex. Fam.Code
Ann.
1996).
(Vernon
jury
§
found
161.001
alleged
engaged
the conduct
and that
the best interest
termination
signed
trial
of the children. The
court
Span-
terminating parental rights.
decree
gler
appeal asserting
point
brings this
one
of error
trial court
in render
erred
judgment
jury’s findings of
because the
factually
supported by
suffi
fact were not
judgment.
cient
will affirm the
evidence. We
BACKGROUND
FACTUAL
girls,
seven
is the father
two
year
year
old
and five
old R.D.S.
1994, grand jury
indicted
for sex-
ually assaulting a child. On June
Depart-
officers
the Bellmead Police
in-
driving
for
while
ment arrested
in the
toxicated
were
1996, Spangler
incarcerated
vehicle. In
felony
for six counts of
retaliation
employees.
On March
this
Waco,
Kingery,
appellant.
R.
Gell
to a
and the
case was submitted
parent-child
terminated
relation-
Gen.,
court
Atty.
Angel,
James Robert
Asst.
Forrester,
children
as
Atty.,
ship
Amy
Stanley
Dist.
between
Asst.
Waco,
Rentz,
Litem,
biological mother.
Atty.
appellee.
Ad
well as with their
OF
POINT
degree
ERROR
defined as “that
measure
produce
which will
in the mind of the trier of
point
alleges
sole
error
fact a firm belief or
as to
conviction
the truth
factually
evidence is
sup-
insufficient to
allegations sought
or the
to be established.”
port
jury’s finding
engaged
Although
Id.
the clear and
stan
knowingly placed
conduct or
the children
proof required
dard of
the trial
level is
persons
engaged
who
conduct
settled,
well
review
endangered
physical
or emotional well-
applied by
to be
this
is not
court
as well
being
of the children.
also asserts
L.R.M.,
S.W.2d 64,
defined.
re
factually
the evidence is
insufficient to
1989, writ).
(Tex.App.
Worth
support
jury’s finding
that he failed to
— Fort
during
year
the children
the one
requires
Texas law
court to
determine
*4
period preceding
filing
the
of the termination
if
court
to the clear
adhered
petition.
convincing
proof.
standard of
Baxter v. Tex
Resources,
Dep’t
as
Human
678 S.W.2d
of
TERMINATION OF PARENTAL
265,
writ).
1984,
(Tex.App.
267
no
— Austin
RIGHTS
The Texas
Court has held that
right
The
existing
natural
between
proceedings
“strictly
termination
be
should
parents and
children
is of constitutional
Holick,
scrutinized.”
S.W.2d
685
at
Smith,
18,
dimension. Holick v.
685 S.W.2d
G.M.,
“In reviewing
will
sustain a
of error
doubt).
beyond
ments of crime
reasonable
insufficient evidence if the trier
fact could
principles
relating
law
Other
find the
the fact
existence of
sufficiency of
are still applicable
evidence
to be established
L.R.M.,
re
even when an intermediate standard of
evidence. See
S.W.2d at 66-67.
*5
L.R.M.,
In
is used.
Joyce mother, Spangler’s Mrs. spoiled. testified she witnessed threat- (cid:127) kill en to Mrs. he re- Spangler’s in No- Observation of house peatedly beat her while M.R.S. watched. fly vember 1996 revealed infestation and Middleton testified that threatened emanating odors from the house. inside up to kill two DPRS workers and blow (cid:127) house, Reports wife’s building. Additionally, Middleton tes- where M.R.S. R.D.S. resided after every night tified that drank wife, Spangler separated from indi- morning staying awakened her one quantity cated small food place playing her Prairie Hill her refrigerator spoiled. pro- Nails “private.” Middleton also recalled that top doorway truded from the the one cry caused when he way all the to the floor addition to the her, “played he washed because presence exposed wiring. Additional- way.” wrong beds, ly, soiled covered sheets glass broken was scattered across the testimony reveals has *6 yard. back Clark stated that the condi- times, been married five has eleven or twelve children, dangerous tions of the house were for and considers himself to be an alco- girls. He on holic. testified that June he (cid:127) driving for was arrested while intoxicated During Spangler’s visitation with his with his in car. DPRS took M.R.S., daughter began crying she girls from him after arrest because stay in refused to the observation room County and the Limestone told with him. girls. him to drink not around (cid:127) filing that When informed DPRS was a petition parental rights, to terminate his Spangler that he hit Mrs. admitted had Spangler anyone that if tried Spangler and to kill stated threatened her children, away his would kill take presence of further that M.R.S. He testified them. gave family forty to the tak- he once dollars (cid:127) money girls care of the and took over Spangler repeatedly to kill threatened weekly. for plans almost He stated that he in person and threatened her and Clark impris- college, although to attend supervisor phone. her over the prevented savings for this onment has (cid:127) concluded that Clark purpose. Spangler any to state future faded Spangler’s parental rights would be plans for R.D.S. best interest M.R.S. and R.D.S. Clark, conservatorship worker a case Anna Shinder, psycholo- Dr. James N. clinical DPRS, following: for testified to the gist, performing psychological testified to (cid:127) after DPRS’ first referral occurred 19, 1994, Spangler on exam December charges Spangler’s rape indictment proto- personality revealed a criminal County in Limestone qualities. type with antisocial traits and (cid:127) Spangler aggres- also that physical ne- exam indicated DPRS’ second referral matters, sive, supervision relies on negleetfid occurred violence resolve glect based September and relates to others on intimidation of 1994. Spangler testified Additionally, Charles Cotton manipulation. Dr. Shinder cemetery years for two for him at during worked angry became testified time, During this he re- eight months. frequently spoke guns, about his sessions dirty were and R.D.S. called that M.R.S. stabbing people. explosives, and Cotton testified he saw them. when DPRS, Guardiola, supervisor Jesse employee to whom he a trusted Spangler was kill him threatened to testified lawyer helped retain a money and loaned phone. Guardiola stated that over the raping a charged with Spangler was after parental rights should be termi- cemetery lived at the young girl. Spangler are part nated in because M.R.S R.D.S. for retaliation prior to his arrest unlikely sepa- very adoptable and are to be hearing testified DPRS. Cotton rated from each other. knew speak of violence and he threatening another charged convicted of Shehorn, therapist for Dr. Debbie a staff in 1993. Cotton testified man a knife Shinder, testified that M.R.S. recalled her child, adopted nephew, who has one that his fighting and an inci- father with her mother inquired adopting M.R.S. and had about “pum- he knocked her down and dent where R.D.S. testified meled” her with his fists. Shehorn expressed very slight Pate, that M.R.S. remorse Virginia the former owner separation worked, father. sadness over from her yard testi- wrecking where Further, M.R.S., witnessed M.R.S. state her Shehorn and R.D.S. fied that Mrs. parents parents desire for who will be her impris- began living Spangler’s after with her Shehorn, According forever. M.R.S. did September 1995. Pate testified onment cry parental when she was told that them for and R.D.S. lived with that M.R.S. rights would be terminated. years Spangler never one and a half them, although he gave money Robertson, appointed spe- Sheila the court Pate testified that bought diapers for R.D.S. R.D.S., cial advocate for M.R.S. and stated and has filed an she has raised children six accompanied that October 1996 she Clark if adopt and R.D.S. application to M.R.S to Mrs. that the condi- house and parental rights are terminated. house, tions at the such as flies in the house re- Since termination of yard, glass and broken in the were as Clark finding by quires of fact make a that the trier termi- testified. Robertson testified this court will Spangler’s parental rights nation of was in *7 alleging only point of error insuffi- sustain a Further, the best interest of the children. if the trier of fact could cient evidence of she testified that M.R.S. told her March reasonably have found the existence adopted. she to 1997that wants be convincing by clear and fact to be established Thomason, postal a farmer and em- Dwain question is Accordingly, the evidence. Hill, ployee Span- testified that Prairie jury reasonably have could whether the gler’s wife worked for him and he recalled prove convincing to found clear and evidence Spangler place. at his seeing intoxicated (1) engaged in conduct Spangler either: per- knowingly placed the children or Coolidge Peggy of testified that Anderson engaged in conduct which who have sons family lived in a trailer and his endangers physical or emotional well- the cleaning her recalled out behind house. She children; support to being the or failed of babysat spoiled baby bottles when she period consecu- for a of twelve his children young and that R.D.S. R.D.S. tive months. long periods car remained her seat the Additionally, only the court asks whether testified that not did time. Anderson by clear reasonably have found Span- jury could Spangler fighting with Mrs. she hear that termination evidence gler, girls came over to but sometimes the in the best relationship is fighting again. night, parent-child they were One tell her Anderson, out interest of the children. according police even came ANN. Tex. Fam.Code (Vernon 1996). If § the evidence 161.001 trailer. 260 part family a plan
shows course of conduct a was under DPRS of service. endangering “which has the effect of jury Based on have could physical well-being or emotional of’ chil- reasonably his found dren, 161.001(1)(E) § finding a under be will engaged evidence that in a course upheld. Dep’t Texas Human v. Servs. endangered daughters’ of conduct which his 581, (Tex.1987). Boyd, 727 S.W.2d 584 Like- physical well-being or emotional such wise, if the evidence shows that parental rights appro- his support daughters during peri- failed to a priate. Boyd, See 727 S.W.2d ending od twelve consecutive with- months filing
in six months of the
date of
CONCLUSION
161.001(1)(F)
petition,
finding
§
under
will
years,
a man of 49
who has
is.
upheld.
be
times,
been married five
elev-
claims
have
children,
parent’s
spouse
A
of a
or
abuse
can
en
twelve
admits to alcohol-
support
suffice to
having regularly
termination
the abuser’s
ism. He
abused
admits
parental rights.
Department
v.
presence
daughters.
See Lucas
his wife in
of his
Servs.,
Protective
Regulatory
&
949
for driving
S.W.2d He
arrested
while intoxicated
500,
1997,
denied);
(Tex.App.—Waco
pet.
503
with his
in the car. His mother-
B.J.B.,
674,
In Interest
cry
676 in-law
that he
testified
caused M.R.S. to
1977,
(Tex.Civ.App.—Texarkana
writ refd
her
“played
when washed
because he
n.r.e.).
parent’s imprisonment
of a
wrong way.”
Evidence
His
most recent
may
contribute to a
parent
troubles
include indictments
the sexual
engaged in
year
girl,
a course of
which
conduct
endan
assault of a fourteen
old
threaten-
physical
knife,
gered
felony
well-
child’s
or emotional
man with
retaliation
being. Boyd,
employees.
727
v.
S.W.2d at
Harris
Herbers,
938,
(Tex.App.—
Under the clear and
writ).
[1st Dist.]
Houston
no
review,
find
we
Spangler engaged
found that
legal duty
A father has
knowingly placed
conduct or
the children
child,
support
even when not ordered
persons
engaged
who have
in conduct
payments
the trial court to make
of support.
endangered
physical
Cole,
(Tex.Civ.
emotional
v.
Laslie
well-being
Having
of his children.
found suf-
writ).
App.—Corpus
Christi
Occa
endangerment ground,
ficient evidence
gifts
parent’s
sional
fulfill a
are insufficient to
we need not
the failure to
Pence,
address
obligation
support.
Homfeld
ground.
(Tex.Civ.App.—El
Paso
writ).
1972,no
Likewise,
after consideration of the
Middleton, Anderson,
Mrs.
Holley,
factors set out
and the evidence
himself
that he
testified
abused
court,
find that
evi
before
we
hitting
open
Mrs.
her with his
supports
finding that
dence
the trial court’s
*8
hand,
fists,
“pummeling”
kicking
with
the best
interest of the children will be
her,
her,
threatening
to kill
all in the
by terminating Spangler’s parental
served
presence of
this
M.R.S. and R.D.S. From
rights. Holley,
incarcerated, serving stemming a sentence felony Although majority’s deci- Spangler spent agree from I with the retaliation. prison amount of time in sion to afSrm the termination of considerable question I jail charges during years parental rights, their decision on other
261 However, I do not find factual the evidence. adopt higher standard of review for to re reason sufficiency proof distinction to be points when the burden of sufficiency standard by formulate the factual at trial is “clear and evidence.” D.L.N., Supreme As I by the Court. recently in In review set As I articulated re D.L.N., criminal cases have an proceeding, ap I another termination believe discussed trial, “beyond apply higher even burden of at pellate courts should continue to doubt,” con appeal but on we sufficiency estab a reasonable traditional factual standard D.L.N., apply factual suffi the traditional Supreme Court. In re tinue lished Supreme which 934, ciency of the Court (Tex.App standard 958 S.W.2d 939-41 . -Waco h.). 1997, Ap adopted the Court of Criminal pet. no State, 126, 129, peals in v. 922 S.W.2d Clewis sufficiency review purpose The of a factual (stating that (Tex.Crim.App.1996) 131 enti appellant is to determine whether the is civil the criminal and “harmonize[d] decision because, looking at tled to a new trial after ap regard jurisprudence of this State evidence, jury’s it appears all the pellate questions of factual suffi review against great weight answer is so D.L.N., ciency”); re 958 at 940. S.W.2d preponderance of the evidence as to be clear Jones, disagree ly wrong unjust. Consequently, because I See Ortiz v. 917 770, (Tex.1996); majority’s adopt higher factual 772 Pool v. Ford decision to S.W.2d Co., 629, (Tex.1986); sufficiency for termi- Motor 715 S.W.2d 635 review Bain, cases, 175, 176(Tex.1986); join opin- I cannot the court’s Cain v. nation Estate, 662, However, wholeheartedly agree King’s 244 I re 150 Tex. S.W.2d ion. (Tex.1951). 660, majority’s Spangler’s pa- 661-62 conclusion that This method eval either un- uating sufficiency the factual rental should be terminated sufficiency stan- der the traditional factual which has been directed above, urged higher appropriately in the dard I have or under the cases cited by majority. balances the court’s need to review standard utilized weight presented of the evidence at trial prevents reviewing it from court simply substituting judgment its for that of many
the factfinder. times We said responsibility that the factfinder has the any disputes weight resolve about the trial, credibility presented of the evidence I and believe the factfinder’s decision should second-guessed appeal be unless it MOUSSAZADEH, Appellant, Max great weight preponder so clearly wrong ance of the evidence as to be Texas, Appellee. unjust. STATE Copeland, See Libhart v. 783, 1997, (Tex.App. no S.W.2d — Waco No. 14-95-01412-CR. Cockrum, writ); Jacobs-Cathey Co. v. 1997, Texas, 288, (Tex.App. Court of 295-96 — Waco (14th Dist.). Co., denied); Houston Lance v. Ins. writ USAA (Tex.App. 428-29 — Waco 5, 1998. Feb. writ); Dep’t generally see Lucas v. Texas Services, Regulatory Protective and pet. (Tex.App. — Waco *9 denied). majority’s adopt higher decision to that a standard of review relies the fact must be
proved at trial “clear and evi- simply by preponderance of dence” and not