in the Interest of C.C., M.C., L.O., and H.P., Children

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,

1
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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