IN THE
TENTH COURT OF APPEALS
No. 10-02-00345-CV
In the Interest of
S.A.P., a Child,
Appellant
From the 19th District Court
McLennan County, Texas
Trial Court No. 2001-1889-1
dissenting Opinion
There is much that I could say about the majority’s opinion. I could detail their hostility generally to termination suits. I could discuss the structure and presentation of the evidence in the opinion to push the reader to the result. I could discuss the long effort to ever so subtly shift the standard of review. But it would not matter.
You see, what matters here is that they disagree with the jury, the trial judge, and me and have reversed this case on an issue, factual sufficiency, that makes it almost impossible for review because the Texas Supreme Court does not have jurisdiction to review a factual sufficiency determination. I do believe that the standard of review, while carefully quoted and discussed, was not properly applied. But because of the way the opinion is constructed, it is difficult to identify what evidence was disputed, if any, what evidence was undisputed, and upon what factor or element the evidence was applicable or considered by the majority. The primary shortcoming in the opinion is the failure to segregate or identify the disputed evidence that a reasonable fact finder could not have reasonably resolved in favor of the jury’s answer, which evidence is what shifts the jury’s answer from being a finding supported by legally sufficient evidence to an answer not supported by factually sufficient evidence. In the Interest of M.A.H., 2004 Tex. App. LEXIS 6913, *15-22 (Tex. App.—Waco July 28, 2004, no pet.); see In the Interest of C.H., 89 S.W.3d 17 (Tex. 2002).
Just dumping all the evidence out in the opinion and then drawing the conclusion desired for the result hardly complies with the express requirement of In the Interest of J.F.C. to “detail in its opinion why it has concluded that a reasonable factfinder could not have credited the disputed evidence in favor of the finding.” In the Interest of J.F.C., 96 S.W.3d 256, 267 (Tex. 2002). After all, the only difference in a legal sufficiency review and a factual sufficiency review in a termination case is how the disputed evidence is evaluated – and, of course, the inability of the Texas Supreme Court to conduct a factual sufficiency review.
When this case left here the first time, almost 16 months ago, I felt fairly certain that it would come back, and even more certain that if it did, I would again have to dissent. But today, I fear that S.A.P.’s fate, which has been cast into uncertainty by two judges who have simply reweighed the evidence, will be to languish longer in that uncertainty.
Upon the same record that the majority has reviewed, indeed even as the facts are presented in this opinion to push the reader to their desired result, I have no trouble in determining that the evidence is such that a fact finder could reasonably form a firm belief or conviction about the truth of the State’s allegations. In the Interest of J.F.C., 96 S.W.3d 256, 266 (Tex. 2002); In the Interest of C.H., 89 S.W.3d 17, 25 (Tex. 2002).
TOM GRAY
Chief Justice
Dissenting opinion delivered and filed June 22, 2005