COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00384-CV
IN THE INTEREST OF A.B. AND
K.B., CHILDREN
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FROM THE 90TH DISTRICT COURT OF YOUNG COUNTY
TRIAL COURT NO. 32,044
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MEMORANDUM OPINION1
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Appellant L.B. appeals the termination of his parental rights to his two
daughters, A.B. and K.B. In one issue, Appellant contends the trial court erred in
denying his motion for mistrial after the jury heard evidence of a criminal history
that the Texas Department of Family and Protective Services (the Department)
1
See Tex. R. App. P. 47.4.
attributed to Appellant but which it later discovered belonged to someone else
with the same name as Appellant. We affirm the judgment of termination.
Background
On April 18, 2013, the Department filed its original petition seeking
termination of Appellant’s parental rights to A.B. and K.B., as well as the parental
rights of the children’s mother. The Department initially placed the children with
their maternal grandmother as part of a child safety placement. The trial court
appointed the Department the temporary managing conservator of the children
on May 9, 2013. The children’s maternal aunt and uncle intervened on October
30, 2013. On April 24, 2014, the trial court extended the dismissal date to
November 7, 2014.
A jury trial began on October 24, 2014. The parties resolved the issues
regarding the children’s mother before trial, so the jury trial focused on whether
Appellant’s parental rights should be terminated. For each child, the charge
asked the jury whether Appellant had knowingly placed or had knowingly allowed
the children to remain in conditions or surroundings that had endangered their
physical or emotional well-being or had engaged in conduct or knowingly placed
the children with persons who had engaged in conduct that had endangered their
physical or emotional well-being and, additionally, whether termination was in the
children’s best interest. Tex. Fam. Code Ann. § 161.001(1)(D), (E), (2) (West
2014). As to both children, the jury answered affirmatively. In the final order, the
trial court terminated Appellant’s parental rights, named the maternal aunt and
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uncle as joint managing conservators of the children, and granted the children’s
mother possessory conservatorship. Appellant brought this appeal.
Evidence
Appellant was fifty-nine years old and admitted using illegal drugs since he
was eighteen—a span of over forty years. The children’s mother said that
Appellant turned their house into a crack house in 2006. Appellant thought A.B.
was born positive for drugs. Appellant admitted using crack two weeks before
the Department became involved in this case. Appellant admitted using
methamphetamine between five to ten times after the Department became
involved.
The children’s mother said Appellant hit, choked, kicked, and physically
abused her. Once she went to the hospital and suffered a temporary hearing
loss. She said the children witnessed the abuse.
Appellant thought he had been arrested once for DWI. He admitted
spending three months in jail for a forgery conviction in 2004. He was arrested in
January 2012 for possession of cocaine. In July 2013, after the removal of his
children and while the case was pending, Appellant was arrested and
incarcerated for felony possession of methamphetamine. Appellant spent from
July 2013 until June 2014 in jail for that offense. While in jail, he was transferred
to another county and convicted of the 2012 possession-of-cocaine offense.
Appellant had not seen the children in well over a year preceding the trial.
Appellant said he was living with his eighty-two-year-old mother. He received
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disability income. Because he was manic depressive and bipolar, he said that
throughout his life he had lost jobs for fighting. Appellant’s description of the
consistency with which he took his medications came across as undisciplined.
The home in which the family lived was filthy.
Appellant’s Issue
In one issue, Appellant argues that the trial court erred by denying his
motion for mistrial after the Department improperly impeached Appellant with a
criminal history that was not his but was that of someone else with the same
name as Appellant.
The Department asked to admit Petitioner’s Exhibits 8, 9, 10, 11, and 12.
There were no objections, and the trial court admitted them. Petitioner’s Exhibit
8 was a forgery state jail felony conviction from 2004 for which Appellant
admitted serving three months.
When questioned about Petitioner’s Exhibit 9, a 2003 DWI with an open
container conviction out of Gregg County, Appellant denied committing that
offense. The Department requested and obtained permission to publish it to the
jury anyway, and the Department published it to the jury. The Department then
asked Appellant if he remembered picking up, at the same time in 2003, a
conviction for fleeing a police officer as shown in Petitioner’s Exhibit 10.
Appellant denied committing that offense as well. At this point the Department
requested and the trial court granted the Department’s request to have the jury
leave the courtroom.
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With the jury absent, Appellant then moved for a mistrial because the
criminal history that the Department had questioned Appellant about was not
Appellant’s but was Appellant’s son’s criminal history and because the admission
of these convictions had tainted the jury. The Department apologized, offered to
withdraw the exhibits, and requested the trial court to instruct the jury that the
Department had made a mistake and that the convictions were not Appellant’s.
The Department did not want the trial court to inform the jury that the convictions
were Appellant’s son’s convictions. Appellant had earlier testified before the jury
that he had a forty-two-year-old son named L.B. Jr. Appellant argued that
because he had denied the offenses, the jury would think Appellant was a liar. In
contrast, the children’s mother’s counsel argued that such an instruction would
enhance Appellant’s credibility because he correctly denied the convictions were
his. The Department published Petitioner’s Exhibit 9 to the jury and discussed
Petitioner’s Exhibit 10 before the jury but did not publish it to the jury; the trial
court admitted Petitioner’s Exhibits 11 and 12, but the Department neither
discussed nor published them to the jury. The trial court denied Appellant’s
motion for mistrial.
When the jury returned, the trial court gave the following instruction:
THE COURT: You may be seated. Ladies and gentlemen of the
jury, you heard a lot of information and cross-examination—or direct
examination concerning State’s Exhibit 9 and 10 on a driving while
intoxicated, or DWI, and a fleeing. I’m here to instruct you now that
it’s been determined that that was not this [L.B.], so I’m instructing
you to disregard that information. And you also heard—as far as
any DWI or any fleeing, it was the wrong [L.B.] that’s in here, so I’m
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telling you to disregard anything as to that criminal history
concerning that.
You also heard the offer of 11 and 12 of which we haven’t
even got into yet. That also has been determined, whatever those
charges are, are not this [L.B.]. So with that in mind, can everybody
do that okay? You can disregard on that?
The first things that were admitted that you do have, that is
part of the evidence of this case for your consideration. But anything
on 9, 10, DWI and fleeing, that [the Department] asked about, and
whatever is contained in 11 and 12, I’m asking that you disregard
and not hold that against [L.B.].
When the Department resumed questioning Appellant, the first thing the
Department said to him was, “Mr. [B.], I want to apologize. I got you confused
with another Mr. [B.] Okay?” Moments later, the Department added, “I’m not
going to be asking you about any DWI or any fleeing because that wasn’t you.
Okay?”
Appellate courts review a trial court’s denial of a motion for mistrial under
an abuse of discretion standard. See Lewis v. United Parcel Serv., Inc., 175
S.W.3d 811, 815 (Tex. App.—Houston [1st Dist.] 2004, pet. denied); In re J.A.,
109 S.W.3d 869, 874 (Tex. App.—Dallas 2003, pet. denied); Schlafly v. Schlafly,
33 S.W.3d 863, 868 (Tex. App.—Houston [14th Dist.] 2000, pet. denied). An
abuse of discretion on a motion for mistrial occurs when the trial court acts
without references to any guiding principle. Rogers v. Dep’t of Family &
Protective Servs., 175 S.W.3d 370, 375 (Tex. App.—Houston [1st Dist.] 2005,
pet. dism’d w.o.j.); see Lewis, 175 S.W.3d at 815; J.A., 109 S.W.3d at 874.
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When a trial court instructs a jury to disregard evidence, the reviewing
court may review the evidence to determine whether an instruction to disregard
was adequate to cure its admission. See In re City of Houston, 418 S.W.3d 388,
397 (Tex. App.—Houston [1st Dist.] 2013, orig. proceeding). A new trial may be
justified if the impact of the improper testimony was incurable by the trial court’s
instructions. Id. In the absence of proof to the contrary, we presume the jury
followed the court’s instruction to disregard evidence. J.A., 109 S.W.3d at 875;
In re K.S., 76 S.W.3d 36, 45 (Tex. App.—Amarillo 2002, no pet.); see In re
G.C.F., No. 02-06-00282-CV, 2007 WL 1018570, at *9 (Tex. App.—Fort Worth
Apr. 5, 2007, no pet.) (mem. op.) (“[W]e have no reason to believe that any harm
caused by that questioning was not cured by the trial court’s instruction to
disregard. Therefore, we cannot conclude that the trial court abused its
discretion.”).
The trial court’s instruction to disregard corroborated Appellant’s testimony
that the convictions in State’s Exhibits 9 and 10 were not his. We fail to see how
this harmed Appellant’s credibility before the jury. The withdrawal of State’s
Exhibits 9, 10, 11, and 12 were, if anything, an embarrassment to the
Department and undermined its credibility.
Appellant contends the jury would have concluded the convictions were for
Appellant’s son, whose name was L.B. Jr. Appellant argues this was extremely
prejudicial because it called into question Appellant’s parenting skills. For the
reasons given below, we disagree.
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The first name in Petitioner’s Exhibits 9, 10, 11, and 12 is “Lawrence.” Our
review of the various exhibits does not show Appellant ever went by the first
name “Lawrence.” Instead, he went by “Larry.” If Appellant’s first name was not
Lawrence, his son’s first name—which was the same as Appellant’s—was not
Lawrence either. This suggests the convictions were not for either Appellant or
his son.
Additionally, Petitioner’s Exhibit 9, the only exhibit published to the jury,
was for someone with the initials L.L.B. Appellant testified and gave his full
name, and the initials for his full name were L.D.B. When giving his son’s name,
he said, “[L.] D. [B.] Jr.” Although both Appellant and the Department asserted to
the trial court that the convictions were Appellant’s son’s convictions, the middle
initials of Appellant’s son and the person identified in Petitioner’s Exhibit 9, as
well as Petitioner’s Exhibits 10, 11, and 12, are not the same. In short, not only
were Petitioner’s Exhibits 9, 10, 11, and 12 not Appellant’s convictions, they do
not appear to be his son’s convictions either.2
The trial court’s instructions did not tie the offenses to Appellant’s son.
Later, when asked about the withdrawn convictions, Appellant responded, “I don’t
2
Within Petitioner’s Exhibit 9, L.L.B. is also identified as “[L.B.] Jr.” This
may explain why both Appellant and the Department asserted the conviction was
for Appellant’s son. However, the very first page of Petitioner’s Exhibit 9
identifies the defendant with a name having the initials L.L.B. Petitioner’s Exhibit
10 was for the same person with the initials L.L.B. Within Petitioner’s Exhibit 10,
L.L.B. is also identified as “[L.B.] Jr.” Petitioner’s Exhibits 11 and 12 were for the
same person (L.L.B.) but included the “Jr.”
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know who it was, but [the Department] tried to put a whole lot of stuff on me.”
Appellant’s testimony did nothing to tie the convictions to his son and, if anything,
appeared to have correctly distanced any link between the convictions and his
son. The record does not support Appellant’s contention that the jury would have
connected the convictions to Appellant’s son and concluded Appellant was a
poor parent on that basis.
Nothing in the record suggests that the jury disregarded the trial court’s
instructions. We, therefore, presume the jury followed them. See J.A., 109
S.W.3d at 875. The Department, by apologizing to Appellant before the jury and
acknowledging the convictions were not his, underscored the importance of not
using those convictions against Appellant. We hold the trial court did not abuse
its discretion by denying Appellant’s motion for mistrial and overrule Appellant’s
issue.
Conclusion
Having overruled Appellant’s sole issue, we affirm the trial court’s
judgment.
/s/ Anne Gardner
ANNE GARDNER
JUSTICE
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
DELIVERED: April 30, 2015
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