IN THE
TENTH COURT OF APPEALS
No. 10-97-210-CV
THOMAS EDWARD SPANGLER,
Appellant
v.
TEXAS DEPARTMENT OF PROTECTIVE
AND REGULATORY SERVICES,
Appellee
From the 19th District Court
McLennan County, Texas
Trial Court # 95-4209-1
CONCURRING OPINION
Although I agree with the majority’s decision to affirm the termination of Spangler’s parental rights, I question their decision to adopt a higher standard of review for factual sufficiency points when the burden of proof at trial is by “clear and convincing evidence.” As I recently articulated in In re D.L.N., another termination proceeding, I believe appellate courts should continue to apply the traditional factual sufficiency standard established by the Supreme Court. In re D.L.N., No. 10-97-178-CV, slip op. at 10-12 (Tex. App.—December 23, 1997, no pet. h.).
The purpose of a factual sufficiency review is to determine whether the appellant is entitled to a new trial because, after looking at all the evidence, it appears that the jury’s answer is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. See Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); In re King’s Estate, 244 S.W.2d 660, 661-62 (Tex. 1951). This method of evaluating the factual sufficiency of the evidence, which has been directed by the Supreme Court in the cases cited above, appropriately balances the appellate court’s need to review the weight of the evidence presented at trial while it prevents the reviewing court from simply substituting its judgment for that of the factfinder. We have said many times that the factfinder has the responsibility to resolve any disputes about the weight and credibility of the evidence presented at trial, and I believe the factfinder’s decision should not be second-guessed on appeal unless it is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. See Libhart v. Copeland, 949 S.W.2d 783, 803 (Tex. App.—Waco 1997, no writ); Jacobs-Cathey Co. v. Cockrum, 947 S.W.2d 288, 295-96 (Tex. App.—Waco 1997, writ denied); Lance v. USAA Ins. Co., 934 S.W.2d 427, 428-29 (Tex. App.—Waco 1997, no writ); see generally Lucas v. Texas Dep’t of Protective and Regulatory Services, 949 S.W.2d 500, 502 (Tex. App.—Waco 1997, pet. denied).
The majority’s decision to adopt a higher standard of review relies on the fact that a termination of parental rights must be proved at trial by “clear and convincing evidence” and not simply by a preponderance of the evidence. However, I do not find this distinction to be a convincing reason to re-formulate the factual sufficiency standard of review set by the Supreme Court. As I discussed in D.L.N., criminal cases have an even higher burden of proof at trial, “beyond a reasonable doubt,” but on appeal we continue to apply the traditional factual sufficiency standard of the Supreme Court which was adopted by the Court of Criminal Appeals in Clewis v. State, 922 S.W.2d 126, 129, 131 (Tex. Crim. App. 1996) (stating that their decision “harmonize[d] the criminal and civil jurisprudence of this State with regard to appellate review of questions of factual sufficiency”); In re D.L.N., 10-97-178-CV, slip op. at 12.
Consequently, because I disagree with the majority’s decision to adopt a higher factual sufficiency standard of review for termination cases, I cannot join the court’s opinion. However, I wholeheartedly agree with the majority’s conclusion that Spangler’s parental rights should be terminated either under the traditional factual sufficiency standard which I have urged or under the higher standard utilized by the majority.
BOBBY L. CUMMINGS
Justice
Opinion delivered and filed February 4, 1998
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