MEMORANDUM OPINION
No. 04-11-00673-CV
IN THE INTEREST OF H.L. and H.L., Children
From the 111th Judicial District Court, Webb County, Texas
Trial Court No. 2006-CVJ-000640-D2
Honorable Monica Z. Notzon, Judge Presiding
Opinion by: Catherine Stone, Chief Justice
Sitting: Catherine Stone, Chief Justice
Phylis J. Speedlin, Justice
Rebecca Simmons, Justice
Delivered and Filed: July 25, 2012
AFFIRMED
Erika L. appeals the trial court’s order terminating her parental rights, contending the trial
court erred by: (1) admitting evidence of matters that occurred prior to the entry of an October
2007 order denying an earlier attempt to terminate her parental rights; and (2) admitting
transcripts of prior hearings. We affirm the trial court’s order.
PROCEDURAL BACKGROUND
In 2006, the Texas Department for Protective and Regulatory Services filed its original
petition to terminate Erika’s parental rights. After a hearing on October 10, 2007, the trial court
signed an order denying the Department’s petition. In that order, the Department was appointed
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managing conservator of Erika’s children, H.L. and H.L., and Erika was appointed possessory
conservator.
In January of 2010, the Department filed a supplemental petition to terminate Erika’s
parental rights. After a jury trial, the trial court signed an order terminating Erika’s parental
rights. Erika then filed a motion for new trial and statement of appellate points. The trial court
held a hearing and determined that only the following two points raised by Erika were non-
frivolous:
The court committed reversible error by allowing into evidence matters
prior to the final judgment dated October 10, 2007. Such evidence was clearly
inadmissible. The only way to introduce evidence prior to October 10, 2007 was
with a transcript of the hearing of the prior trial. No transcript of the prior trial
was offered or admitted. The court committed reversible error in allowing such
prejudicial evidence, in violation of Texas Family Code 161.004(b), as such
matters were barred by res judicata and collateral estoppel. The admission of this
evidence over Respondent Mother’s objection was reversible error.
The trial court erred by allowing transcripts of prior hearings to be
admitted wholesale and without foundation and without reading it into evidence.
The admission of this evidence over Respondent Mother’s objection was
reversible error.
Erika did not appeal the trial court’s finding that the remaining points raised by Erika were
frivolous, nor does Erika challenge the trial court’s frivolous finding in her brief. Accordingly,
the scope of this appeal is limited to the two issues the trial court found to be non-frivolous.
MATTERS PRIOR TO OCTOBER 10, 2007
With regard to the issue about the admission of evidence of matters prior to October 10,
2007, the only testimony referenced in the brief is Erika’s testimony that she was using alcohol
by the age of 12 and using marijuana one or two years later. 1 Although an objection was made
regarding a letter Erika had written to a trial judge regarding the reasons she wanted her children
1
Unlike the issue presented in the statement of appellate points, we note that Erika’s brief does not raise any issue
with regard to the necessity of the evidence being introduced only through a transcript of the prior hearing.
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returned to her, no objection was made when Erika testified about the age at which she began
using alcohol and marijuana. Instead, almost ten pages after Erika’s testimony, an objection was
made that the testimony related to matters before the 2007 judgment and referencing res judicata.
In order to preserve error for appellate review, the record must show that the complaint
was made to the trial court by a timely objection. TEX. R. APP. P. 33.1. “An objection made
after the objectionable testimony has been given is untimely, and any potential error is waived.”
Amunson v. State, 928 S.W.2d 601, 607 (Tex. App.—San Antonio 1996, pet. ref’d); see also
Seneca Resources Corp. v. Marsh & McLennan, Inc., 911 S.W.2d 144, 152 (Tex. App.—
Houston [1st Dist.] 1995, no writ) (objection made after lengthy testimony spanning eight pages
of the statement of facts was not timely). In the context of parental termination appeals,
“adhering to our preservation rules isn’t a mere technical nicety; the interests at stake are too
important to relax rules that serve a critical purpose.” In re L.M.I., 119 S.W.3d 707, 708 (Tex.
2003). Because the objection that Erika’s testimony related to matters before October 10, 2007
was made after the testimony was given, the objection was untimely, and any potential error is
waived. 2 See TEX. R. APP. P. 33.1; Amunson, 928 S.W.2d at 607.
ADMISSION OF TESTIMONY FROM PRIOR HEARING
The second issue the trial court found to be non-frivolous was the admission of testimony
from a prior hearing. This issue pertains to the introduction of the transcript from a prior hearing
in which two witnesses testified who were not available to testify at trial. Erika concedes in her
brief that no authority would support reversal on this basis, and the Department notes the
2
In briefing this issue, Erika also appears to contend this testimony is insufficient to support the termination of her
parental rights under section 161.001(1)(P) of the Texas Family Code. See TEX. FAM. CODE ANN. §§ 161.001(1)(P),
161.004 (West Supp. 2011). The order terminating Erika’s parental rights, however, based the termination on the
jury’s findings in support of termination under sections 161.001(1)(D), 161.001(1)(E), and 161.001(1)(O).
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testimony was admissible under TEX. R. EVID. 804(b)(1) (setting forth hearsay exception for
testimony given as a witness at another hearing of the same proceeding).
CONCLUSION
The trial court’s order is affirmed.
Catherine Stone, Chief Justice
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