In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-15-00160-CV
IN THE INTEREST OF C.C., M.C., L.O., AND H.P., CHILDREN
On Appeal from the 364th District Court
Lubbock County, Texas
Trial Court No. 2013-508,801, Honorable Bradley S. Underwood, Presiding
September 1, 2015
OPINION
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Haley P. and Nick C. appeal from a final order terminating their parental rights to
their four children. They assert three issues to justify reversal of the decree. The first
two involve the admission of an investigative report while the third concerns the trial
court’s decision to receive the testimony of a previously undesignated expert witness.
We affirm the order of termination.
Admission of Investigative Report
Regarding the admission of the investigative report, Nick and Haley proposed
that “. . . the trial court erroneously allowed the entire investigative report into evidence
under the theory of optional completeness” and that “. . . the admission of the report
resulted in harm . . . .” We overrule the issues.
The investigative report in question was drafted by an employee of the Texas
Department of Family and Protective Services (the Department) who was assigned to
investigate the case. Nick and Haley sought to admit only the report’s first page. It
contained information received by the Department, which information gave rise to the
subsequent investigation. The data thought pertinent by Nick and Haley indicated that
the children were not suffering from physical abuse. Once the page was admitted into
evidence, the Department sought the admission of the entire document under the rule of
optional completeness, Texas Rule of Evidence 107. Nick and Haley objected,
contending that Rule 107 did not apply, the entire report was “littered with hearsay
statements,” its prejudice outweighed its probative value, the Department had not laid
the proper predicate for its admission, and it was an inadmissible expert’s report. The
trial court overruled the objections and admitted the entire report.
Nick and Haley do not reiterate before us each ground mentioned to the trial
court. Instead, they focus on hearsay and Rule 107. Regarding the former, however,
we deem the ground insufficiently preserved. Other than mentioning the phrase “littered
with hearsay,” they did not inform the trial court of the particular instances of hearsay
they deemed inadmissible. This is problematic since a blanket hearsay objection that
does not identify which parts of the document contain the hearsay is insufficient to
preserve error with respect to those parts. L.M. & Y.Y. v. Dep’t of Family and Protective
Servs., No. 01-11-00137-CV, 2012 Tex. App. LEXIS 5683, at *12 (Tex. App.—Houston
[1st Dist.] July 12, 2012, pet. denied) (mem. op.); In the Interest of M.N., No. 11-10-
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00129-CV, 2011 Tex. App. LEXIS 1924, at *3 (Tex. App.—Eastland March 17, 2011, no
pet.) (mem. op.); Flores v. City of Liberty, 318 S.W.3d 551, 560 (Tex. App.—Beaumont
2010, no pet.). Nick and Haley do not contend before us that everything in the report
constituted inadmissible hearsay. Instead, they cite specific excerpts from the report as
examples of hearsay within the document. Yet, these excerpts were not brought to the
attention of the trial court. Again, their objection below was general and non-specific.
Given these circumstances, the blanket hearsay objection they uttered at trial was not
enough to preserve their complaints with regard to the specific instances of purported
hearsay mentioned to us.
As for Rule 107, it provides that “[i]f a party introduces part of an act, declaration,
conversation, writing, or recorded statement, an adverse party may inquire into any
other part on the same subject . . . [and] may also introduce any other act, declaration,
conversation, writing, or recorded statement that is necessary to explain or allow the
trier of fact to fully understand the part offered by the opponent.” TEX. R. EVID. 107.
The rationale behind the rule serves to permit an opponent of the alleged incomplete
writing to introduce the remainder of the writing to correct any false or misleading
impressions left with the jury by the incomplete writing. Walters v. State, 247 S.W.3d
204, 217-18 (Tex. Crim. App. 2007); Lomax v. State, 16 S.W.3d 448, 450 (Tex. App.—
Waco 2000, no pet.). It allows the admission of otherwise inadmissible evidence to fully
and fairly explain a matter broached by the adverse party. Walters v. State, 247 S.W.3d
at 217-18. Nevertheless, the omitted portion of the statement must be on the same
subject and must be necessary to make the admitted portion fully understood. Sauceda
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v. State, 129 S.W.3d 116, 123 (Tex. Crim. App. 2004). Finally, we review the decision
to admit or exclude the evidence under the standard of abused discretion. Id. at 120.
The first page of the report that Nick and Haley introduced into evidence
pertained to the “intake” or a caller informing the Department about the circumstances
of the children. In particular, they wanted the jury to see the portion of the page wherein
there appeared statements that “[t]he children appear to be ‘in good shape’ and were
observed ‘bouncing around’ and ‘happy’” and that there were “. . . no concerns of
abuse” and “[t]here is no known effect on [the] children at this time . . . .” According to
Nick and Haley, the first page of the investigative report addressed whether the children
were victims of physical abuse. Given that specific topic, they argued that the page was
complete within itself and not misleading. Yet, when the Department employee who
drafted the report and conducted the initial investigation was asked if the statements in
the report “would . . . support that the children’s physical condition was not affected,”
she answered “[n]o.” According to her, the children looked hungry and dirty.
Furthermore, aspects of the omitted report contained descriptions of the living
conditions to which the children were subjected. According to the police who appeared
on the scene, the residence had no water or electricity. Dog feces, dog urine, and trash
(which included dirty diapers) covered the floor. Maggots crawled inside and outside
the refrigerator. Rotten food was discovered in the kitchen. The children were dirty,
unkempt, and dressed only in diapers, even though one was at least three years old.
Physical abuse comes in many forms, and we cannot fault a trial court for
refusing to conclude that forcing children to live in squalor or otherwise unhealthy
conditions falls outside its scope. So, the trial court could have reasonably deduced
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that the first page of the report was rather misleading and an incomplete description of
the circumstances to which the children were being subjected. Thus, some portions of
the additional twenty-six pages were admissible to explain whether the children showed
signs of physical abuse or some other adverse consequences when the Department
first encountered them in 2013. This is true even though those portions of the report
may have contained hearsay. See Walters v. State, supra (acknowledging that Rule
107 is an exception to the hearsay rule).
However, the report contained other information unrelated to potential abuse
suffered by the children when the Department was first contacted. Included within this
data were such things as the childhood and criminal histories of the parents as well as
their mental health, a previous history of possible domestic violence between the
parents, Haley’s own previous experience as a foster child, the safety plans instituted by
the Department, the results of subsequent inspections of the living quarters of the
parents, possible placements for the children, and visitations with the children. Such
was not necessary to correct misimpressions created by admission of the first page and
should have been excluded. Consequently, the trial court erred in admitting the entire
investigatory report without first redacting its irrelevant aspects. See Whipple v. State,
281 S.W.3d 482, 500 (Tex. App.—El Paso 2008, pet. ref’d) (finding the entire report of a
doctor to be inadmissible when the part admitted by the defense related only to the
moment of the shooting for which the defendant was on trial but the rest of the report
contained the personal, financial, and mental health history of the defendant as well as
all events that occurred on the day of the shooting).
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That the trial court erred, though, does not ipso facto obligate us to reverse the
judgment. Reversal depends upon our determination of whether the error was harmful,
TEX. R. APP. P. 44.1(a), and harm exists, in instances involving the improper admission
of evidence, if the error probably caused the rendition of an improper judgment. State v.
Cent. Expressway Sign Associates, 302 S.W.3d 866, 870 (Tex. 2009); TEX. R. APP. P.
44.1(a)(1). In other words, a “successful challenge to evidentiary rulings usually
requires the complaining party to show that the judgment turns on the particular
evidence excluded or admitted.” Tex. DOT v. Able, 35 S.W.3d 608, 617 (Tex. 2000).
Erroneously admitted evidence is generally harmless when the same or similar
evidence was admitted elsewhere and the appellant does not complain of it on appeal.
See State v. Dawmar Partners, Ltd., 267 S.W.3d 875, 881 (Tex. 2008) (concluding that
the error was harmless because the evidence “was cumulative of substantially similar
evidence from another expert . . . whose testimony has not been challenged on
appeal”); accord Reliance Steel & Aluminum Co. v. Sevcik, 267 S.W.3d 867, 873 (Tex.
2008) (stating that the admission or exclusion of evidence is likely harmless if the
evidence was cumulative of other evidence). Nor is it harmful when the “rest of the
evidence was so one-sided that the error likely made no difference.” Reliance Steel &
Aluminum Co. v. Sevcik, 267 S.W.3d at 873. Finally, in reviewing the matter, we
consider the entire record. Interstate Northborough Partnership v. State, 66 S.W.3d
213, 220 (Tex. 2001).
The appellate record here is comprised of multiple volumes of testimony. In
perusing those volumes, we found evidence substantially similar to that appearing in the
investigative report. More importantly, neither Nick nor Haley complained to us about
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that substantially similar evidence. Like the report, it too revealed 1) Haley having left
Nick to enter a residence for battered women, 2) one of the children having reported to
a therapist that her parents used to push each other and argue, 3) Haley having been a
foster child herself, 4) some of Haley’s experiences as a foster child, 5) the deplorable
living conditions encountered at the home, 6) the relationship between the
grandmother’s dogs and the condition of the house, 7) the referral of at least one child
to assessment for developmental delays, 8) Nick having spanked the children in the
past and destroying a teddy bear because one of the children broke a video game, 9)
the use by both parents of drugs, 10) Haley having moved from the home for two years,
11) Haley having left the children (which included a newborn) with Nick when she
moved out, 12) Haley having been overwhelmed by the care of four young children
upon her return to the family, 13) the first foster family having become upset because
Nick and Haley did not stay in contact with them, and 14) the parents having been
arrested for shoplifting when the Department was moving towards reunification of the
family.
Admittedly, the Department directed the jury’s attention to the investigative report
during its closing argument. Yet, again, much of the information in the report regarding
the last five years of the parents’ lives was admitted through other sources including the
testimony of both Nick and Haley. Under these circumstances, we cannot say that the
jury’s verdict or judgment turned on the admission of the investigative report.1 Indeed,
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We do not ignore the allegation of Nick and Haley that their counsel spoke to jurors after the
verdict, and various jurors indicated that they relied on the investigative report in reaching their verdict.
Assuming arguendo that such conversations occurred, we find it problematic that the two appellants and
their legal counsel invite us to implicitly breach Texas Rule of Civil Procedure 327(b) and Texas Rule of
Evidence 606(b). Both prohibit a juror from testifying about his thought processes utilized and statements
or matters occurring during deliberation. And, though there are exemptions to that prohibition, they do not
apply here. See TEX. R. EVID. 606(b) (stating that a juror may testify whether any outside influence was
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our review of the entire record led us to find overwhelming evidence outside the report
that enabled the jury to conclude that both parents knowingly placed or knowingly
allowed their children to remain in conditions and surroundings which endangered their
physical or emotional well-being and engaged in conduct or knowingly placed their
children with persons who engaged in conduct which endangered their physical or
emotional well-being. There is little probability that non-cummulative, inadmissible
evidence affected the outcome here.
Testimony of Dr. Shawn Keel
Nick and Haley also complain of the trial court’s decision to permit the
intervenors to call Dr. Shawn Keel to testify as an expert. This purportedly was error
because the intervenors had not timely designated her as an expert. We overrule the
issue.
In urging their argument, Nick and Haley rely on Texas Rule of Civil Procedure
195.2. The latter provides:
Unless otherwise ordered by the court, a party must designate experts -
that is, furnish information requested under Rule 194.2(f) - by the later of
the following two dates: 30 days after the request is served, or - (a) with
regard to all experts testifying for a party seeking affirmative relief, 90 days
before the end of the discovery period; (b) with regard to all other experts,
60 days before the end of the discovery period.
TEX. R. CIV. P. 195.2. In turn, Rule 194.2(f) provides that a party may request the
disclosure of the identity of testifying experts. TEX. R. CIV. P. 194.2(f) (stating that “[a]
party may request disclosure of any or all of the following . . . for any testifying expert . .
improperly brought to bear upon any juror and to rebut a claim that the juror was not qualified to serve). If
a juror cannot personally tell us of those matters he considered in reaching his verdict, we can hardly
consider such evidence simply because it is an attorney attempting to proffer hearsay about what the
juror said. So, in conducting our harm analysis, we forego the invitation to disregard the aforementioned
rules of procedure and evidence by considering what a juror supposedly said.
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. the expert’s name, address, and telephone number . . . .”). Reading the two provisions
together, we conclude that the obligation to disclose the identity of a testifying expert
arises when the information was requested under Rule 194.2(f). Indeed, such an
interpretation is mandated by inclusion of the phrase “that is, furnish information
requested under Rule 194.2(f)” after the phrase “a party must designate experts.” The
former clarifies what was meant by the latter. So, what Rule 195.2 tells the reader is
that X and Y are the default deadlines for providing the information requested under
Rule 194.2(f), that information being the identity of testifying experts.
Here, Dr. Keel was called as an expert witness by the intervenors (that is, the
foster parents to two of the children) even though the intervenors had not designated
her as a testifying expert. Yet, the record reveals that no one had propounded any
discovery requests upon the intervenors. Thus, a condition precedent to the application
of Rule 195.2 never occurred. That is, no one requested that the intervenors disclose
their testifying experts under Rule 194.2(f). Nor do we find of record an order obligating
the parties to disclose their testifying experts by any date irrespective of whether
another party sought their disclosure. So, the intervenors had no obligation to disclose
Keel before trial, and the trial court did not err in permitting her to testify. See In the
Interest of C.D., 962 S.W.2d 145, 147 (Tex. App.—Fort Worth 1998, no pet.) (holding
that because no discovery requests were sent to the ad litem for the children, there was
no duty on the part of the ad litem to disclose the witnesses he would call).
Nick and Haley cite us to G.T. Leach Builders LLC v. Sapphire V.P., L.P., 458
S.W.3d 502 (Tex. 2015) and argue that it imposed an obligation upon litigants to
designate experts even though no one requested such a designation. G.T. involved the
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question of whether a party had waived its right to arbitration by invoking the judicial
process. In resolving that topic, the Supreme Court noted that G.T. had designated
experts and responsible third parties in conformance with a deadline imposed via an
agreed scheduling order. Id. at 514. It decided that the party agreeing to the
scheduling order was insignificant because, according to the Court, the party would
have otherwise been obligated to designate same via the “default deadline for expert
designations when the court has not set one . . . .” Id. When read in context, the
Supreme Court’s allusion to “default deadlines” cannot reasonably be construed as
imposing an obligation to designate experts when no one requested such a designation.
Indeed, the court’s use of the phrase comports with our interpretation of Rule 195.2.
Unless a trial court has ordered a deadline, the deadline to furnish information
requested under 194.2(f) defaults to the deadlines provided in 195.2.
Having overruled each issue before us, we affirm the order terminating the
parental rights of Haley P. and Nick C.
Brian Quinn
Chief Justice
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