dissenting.
SEPARATE TRIALS VERSUS SEPARATE COUNSEL
The majority simply recast trial counsel’s motion for separate trials as a motion for separate counsel on appeal. They also allow the Dosseys to engraft an ineffective assistance of counsel issue onto the newly cast issue on appeal. This is improper and I cannot join in it. Justice and due process do not require it.
At trial, counsel made numerous arguments why his clients should have separate *220trials. The motion was denied. The same counsel, now on appeal, no longer argues that issue. The record and the briefs do not reflect why there has been a change in strategy. Whatever the reason, the Dos-seys have not argued that the trial court erred in failing to allow separate trials. Review of that decision was the process that was due them under the facts and circumstances of this case. Because the appellate argument does not conform to the motion urged at trial, nothing is presented for our review. See Banda v. Garcia, 955 S.W.2d 270, 272 (Tex.1997); Texas DOT v. Olson, 980 S.W.2d 890, 898 (Tex.App.—Fort Worth 1998, no pet.).
Essentially, the majority has determined that as a matter of law, trial counsel violated his ethical responsibility to not represent clients with conflicting interests at trial.1 This is a civil proceeding. In a civil proceeding, clients may consent to conflicts of interest created by joint representation provided the consent is obtained after full disclosure. Tex. Disciplinary R. Prof’l Conduct 1.06(b) & (c), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit.G app. A (Vernon 1998); see also FDIC v. United States Fire Ins. Co., 50 F.3d 1304, 1314 (5th Cir.1995). The parties may have decided that their interests were best represented by a single attorney presenting a comprehensive and consistent picture. In this case, the parties clearly consented to joint representation on the record. We should not second-guess the parties’ and their attorney’s trial strategy of joint representation but requesting separate trials. The trial court was never asked to appoint separate trial counsel and therefore, did not err by failing to do so.
BROAD FORM SUBMISSION
As for broad form submission, again, this is a civil proceeding, not criminal. Without determining that any ground submitted for termination was improper, or not supported by sufficient evidence to support the jury verdict on that issue, the majority simply applies the standard for criminal charges. This too is improper, and I cannot join it.
If. the Dosseys’ ability to present the issue on appeal was adversely affected by the broad form submission, and if a timely objection thereto had been raised, the result may be justified. But the real question here is whether it is necessary, in a civil termination suit, for ten jurors to all agree on the same ground for termination. I do not believe the statutes, the rules of procedure, or due process require it.
In a termination proceeding, there is a constant balancing of the parents’ rights against society’s determination of the best interest of the child. The parents’ right is to have children and raise them according to their own ideas, with the means available to them, in a manner they deem appropriate. Our society has determined that the parents’ rights are not unlimited and must conform to a general notion of what is in the best interest of a child. The legislature has very carefully specified what conduct of the parent can result in termination of the parents’ rights. This has been referred to as a “predicate act” for termination. See In re J.M.T., 39 S.W.3d 234, 238 (Tex.App.—Waco 1999, no pet.). But the jury must also determine that termination of those rights are in the best interest of the child.
I do not believe that due process necessarily requires ten jurors to agree on *221which predicate act has been violated. As long as ten jurors agree that one of the predicate acts alleged and proved was violated, the statute has been complied with.
Finally, the due process argument regarding broad form submissions in a termination case has been considered and summarily rejected by the Supreme Court. Texas Dept. of Human Services v. E.B., 802 S.W.2d 647, 649 (Tex.1990). The Dos-seys have not brought themselves within the Crown Life exception because they have not shown that any theory submitted to the jury was “an improperly submitted invalid theory.” Crown Life Ins. v. Casteel, 22 S.W.3d 378, 388 (Tex.2000). We fly in the face of existing Texas Supreme Court precedent on this issue by holding to the contrary.
AFFIDAVITS OF JURORS
While we have recently held that we cannot consider the affidavit of a juror regarding what affected their deliberations, the majority quotes a juror’s affidavit and relies on it to reverse the trial court’s judgment. See Tucker v. Interstate Brands Corp., No. 10-98-333-CV (Tex.App.—Waco April 4, 2001, not designated for publication). This is improper. See Tex. R. Evid. 606(b). Further, it encourages others to use improper means to influence this Court. This type evidence has no place in an appeal and should be consistently disregarded and condemned. This specific affidavit is especially troubling because the subject of the affidavit is arguably the type considerations that a jury should make, particularly as it may relate to the best interest of the child. Additionally, it evidences a weighing of the testimony of the witnesses and their credibility. If the jury collectively, or an individual juror, believed that Spring had endangered the children by leaving them with Jimmy, that is a predicate act. Further, if they did not believe that she would in fact leave Jimmy if they terminated only his parental rights and thus he would still be in a position to affect the children’s physical or emotional health, they could have properly determined that it was in the best interest of the children to terminate her rights as well. Thus, even if the affidavit could be considered, which it cannot, it does not support the conclusions reached by the majority.
CONCLUSION
For the reasons expressed herein, I respectfully dissent.
. Further, they reward that attorney, and his clients, by allowing the appellate attorney to skirt the ethical issue on appeal, holding that it is acceptable for that same attorney to represent both of them on appeal.