In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-22-00389-CV
__________________
IN THE INTEREST OF W.R.B., D.R.B.,
G.G.B. JR., B.T.B., AND C.L.B.
__________________________________________________________________
On Appeal from the County Court at Law No. 3
Montgomery County, Texas
Trial Cause No. 13-07-07557-CV
__________________________________________________________________
MEMORANDUM OPINION
Father seeks to overturn the trial court’s order terminating his
parental relationships with Willow, Delilah, Gavin, Ben, and Chelsea.1
1To protect the minors’ identities, we have used pseudonyms for
their names and the members of their family. Tex. R. App. P. 9.8
(Protection of Minor’s Identity in Parental-Rights Termination Cases).
We also note that Mother’s parental rights to the same five children were
terminated in a separate cause, assigned Trial Court Cause Number 22-
10-14152. Although Mother appealed, we affirmed the trial court’s order
terminating Mother’s parent-child relationships with the same children
who are the subjects of this appeal in Appeal Number 09-22-00402-CV.
1
In a single issue, Father argues the trial court erred in admitting the
Judgment of Conviction and the indictment from his criminal case,
evidence that shows he was indicted and convicted on one count of
Continuous Sexual Abuse of a Child. 2
As to the indictment, it alleges that Father, in a period of thirty
days or more from November 2014 through November 2020 and when
Willow and Delilah were children, committed two or more acts of sexual
abuse against them by touching their genitals with his “hand and an
object, namely a massager/vibrator, with the intent to arouse or gratify
the Defendant’s sexual desire.” As explained below, the legislature made
a parent’s conviction for certain crimes, including the crime of
Continuous Sexual Abuse of a Child, a predicate ground on which a
factfinder may choose to terminate a parent-child relationship. 3 Father’s
issue, however, concerns whether the evidence was admissible and not
whether it was sufficient to justify terminating his relationship with his
five children. As to Father’s complaint, the evidence shows he was
2Father appealed from the conviction in his criminal case. His
appeal is currently before the Ninth Court of Appeals and is assigned
Appeal Number 09-22-00286-CR.
3Tex. Fam. Code Ann. § 161.001(b)(1)(L)(xiv).
2
convicted of Continuous Sexual abuse of a Child that was cumulative of
other similar evidence which was admitted without objection. Because
the admission of the judgment was harmless in light of the admission of
the other evidence showing Father had sexually abused his children, we
will affirm.
Background
The issue Father raises in his appeal does not require a full
discussion of the evidence before the jury during the trial. According to
Father, the trial court erred in admitting the judgment from his criminal
trial, which shows that he was convicted of Continuous Sexual Abuse of
a Child. Father’s theory is that the judgment was not admissible under
the Rules of Evidence that apply to admitting judgments in prior cases
because the judgment in his criminal case is currently on appeal, so it is
not yet final. 4 Therefore, we limit our discussion of the background to the
information needed to explain our resolution of Father’s issue.
In May 2021, the Texas Department of Family and Protective
Services (the Department) sued Father seeking to terminate his parental
rights on several grounds, including the predicate grounds of condition
4See Tex. R. Evid. 803(22) (Judgment of a Previous Conviction).
3
endangerment, conduct endangerment, having incurred a conviction for
seriously injuring a child, constructive abandonment, and his alleged
failure to comply with his family service plan. 5
Twelve witnesses testified after the case was called to trial: (1) the
CPS caseworker; (2) Father; (3) an advocate the trial court appointed in
Father’s criminal case to attend the criminal trial with the children, talk
with the children, and to encourage the children to “not be afraid to come
into court and tell their truth[;]” (4) one of two advocates the trial court
appointed to assist the children in the family law proceeding the
Department filed to terminate Father’s parental rights, their CASA; (5)
the second of the two CASAs in the family law proceeding; (6) the CASA
supervisor, who testified he visited with Father when Father was in jail;
(7) Father’s stepbrother; (8) Tori, Father’s twenty-one-year old daughter;
(9) Willow; (10) Gavin; (11) Delilah; and (12) Ben. On appeal, Father
didn’t challenge the jury’s findings on three predicate grounds of
condition endangerment, conduct endangerment, or dispute that he had
been found guilty of Continuous Sexual Abuse of a Child. 6 Furthermore,
5Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E, (L), (N), (O).
6See id. § 161.001(b)(1)(D), (E), (L)(xiv).
4
Father hasn’t challenged sufficiency of the evidence supporting the jury’s
best-interest finding. 7
During the trial, the Department’s attorney elicited direct
testimony from Willow, Delilah, Gavin, and Ben, which details Father’s
sexual misconduct. For instance, the jury heard Willow testify that
Father used a massager on her “private area.” She added that Father
touched her chest, grabbed her “rear end,” and grabbed her “private area”
when she slept with him on the couch. Delilah testified Father applied
lotion to her “private areas” with his hands many times, and she said he
did the same thing to some of her sisters too. According to Delilah, she
saw her Father touch Tori “[b]etween her legs, . . . [o]n her thighs, on her
butt, and on her chest area[,]” and she had seen them “sleeping on the
same couch and . . . usually . . . smiling and stuff.”
Gavin testified he saw Tori use a massager on Father, which in his
opinion he considered to be abuse. Gavin stated that while living with
Father in one town, which Gavin identified, Tori slept with Father on the
couch every night. Gavin added that he had seen his Father “grab his
sisters’ breasts or their rear end.” When Ben testified, he told the jury
7Id. § 161.002(b)(2).
5
that he saw Father put a “vibrating thing” on Willow’s “private area.”
Ben said he had seen his Father touch Willow’s breast and butt. Four of
Father’s children testified they wouldn’t feel safe if returned to Father’s
care.
On appeal, Father complains the trial court erred in admitting the
judgment of conviction from his criminal trial, claiming it was
inadmissible under Rule 803(22) of the Rules of Evidence. The
Department marked the judgment of conviction from Father’s criminal
trial as Exhibit 10. After hearing the parties’ arguments, the trial court
overruled Father’s objection and admitted Exhibit 10 before the jury in
the trial.
Shortly after the trial court admitted Exhibit 10 into evidence, the
record shows that the Department’s attorney elicited testimony from
Father that describes the information in Exhibit 10. For instance, the
judgment reflects Father was convicted of the Continuous Sexual Abuse
of a Child. On cross-examination, Father confirmed he was convicted of
continuous sexual abuse of a child. And on cross-examination, Father
confirmed that in his criminal trial he was given a ninety-nine-year
sentence.
6
When Father was questioned by the Department’s attorney,
however, Father’s attorney never objected to any of the questions the
Department’s attorney asked him when questioning Father about
Exhibit 10. Father’s attorney also didn’t ask the trial court to allow
Father a “running objection” to any reference in the trial to any testimony
about Exhibit 10 or to its contents. 8 During the trial and as to Exhibit 10,
Father testified that:
• He recognized the exhibit;
• It contains his signature;
• His fingerprints are on it;
• His criminal case was tried “this year” [(2022)];
• Exhibit 10 is a copy of the judgment of conviction by a jury;
• The jury found him guilty;
• He was found guilty of “Continual sexual abuse of a child[,]
and
• He was sentenced to “99 years . . . in TDJC[.]”
8See Ethington v. State, 819 S.W.2d 854, 858-59 (Tex. Crim. App.
1991) (describing the appropriate use of running objections to preserve
error).
7
Standard of Review
We review a trial court’s ruling admitting evidence for abuse of
discretion. 9 A trial court abuses its discretion when it acts without regard
to the guiding rules or principles governing the admission of evidence, or
if its decision to admit or exclude evidence is shown to have been
arbitrary or unreasonable. 10
Even if an abuse of discretion occurred in admitting evidence that
a party complains of on appeal, we will reverse the judgment only when
the record shows the error was harmful, which requires the appellant to
show the error either “probably caused the rendition of an improper
judgment[,]” or it “probably prevented the appellant from properly
presenting the case to the court of appeals.” 11 When reviewing for harm,
we review the entire record and require the appellant “to demonstrate
that the judgment turns on the particular evidence admitted” in the
9In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005).
10See Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43
(Tex. 1998); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-
42 (Tex. 1985).
11Tex. R. App. P. 44.1; see also U-Haul Int’l Inc. v. Waldrip, 380
S.W.3d 118, 132 (Tex. 2012).
8
trial. 12 Even when evidence is admitted in error, however, the error on
review will be found to be “harmless if it is merely cumulative” of other
evidence that the appellant hasn’t complained about in the appeal. 13
Discussion
According to Father, Texas Rule of Evidence 803(22) makes the
judgment and the indictment tied to his conviction for Continuous Sexual
Abuse of a Child inadmissible because his conviction is on appeal and not
yet final. Father was convicted under the judgment at issue in the 435th
District Court of Montgomery County, Texas in Cause Number 20-11-
14200. The trial court signed the judgment in August 2022, and the
judgment is on appeal and not yet final. 14 The offense is a first-degree
felony, and the judgment shows that Father received a ninety-nine-year
sentence.
Under the Family Code, a predicate ground for terminating a
parent-child relationship includes a parent having incurred one of
several convictions under the Penal Code, one of which is Penal Code
12See Nissan Motor Co. v. Armstrong, 145 S.W.3d 131, 144 (Tex.
2004).
13Id.
14The appeal is Appeal Number 09-22-00286.
9
Section 161.001(b)(1)(L)(xiv), which is a conviction that involves the
continuous sexual abuse of a child or of children. 15 Importantly, the
Family Code doesn’t expressly require that a parent’s conviction be final
to serve as a predicate ground for terminating a parent’s relationship
with a child under section 161.001(L), as the statute merely requires the
parent to have “been convicted[,]” and does not require that a parent have
a final conviction. 16
On appeal, Father argues the Texas Rules of Evidence control over
the Family Code as to whether the indictment and judgment in his
criminal case were admissible. He asks that we hold the trial court erred
in allowing the indictment and judgment admitted, and he argues that
this Court should apply the Rules of Evidence in a way that would
potentially nullify the legislature’s decision about how a certain number
of criminal judgments should be treated in civil trials in cases filed by the
Department when it seeks to terminate a parent’s relationship with their
child.
15Tex.Fam. Code Ann. § 161.001(b)(1)(L)(xiv).
16Id. § 161.001(b)(1)(L). We are making this statement as an
observation and not as a holding in this appeal.
10
According to Father, the judgment and the indictment tied to it
were inadmissible under Texas Rule of Evidence 803(22) because that
rule requires judgments in criminal cases to be final—meaning all
possible appeals have been exhausted—before a judgment in a criminal
case may be used as evidence in a trial over terminating a parent’s
relationship with their child. As to Rule 803(22), Father notes the Rule
states that in a civil case, the hearsay rules do not exclude the admission
of a judgment of a previous conviction if (i) the judgment was entered
after a trial or upon a plea of guilty (but not upon a plea of no-contest);
(ii) the conviction was for a felony; (iii) the evidence is admitted to prove
any fact essential to sustain the judgment of conviction; and (iv) an
appeal of the conviction is not pending. 17 Father argues that because the
appeal in his case is pending, the judgment in his criminal case should
not have been admitted in the trial of the civil case to terminate his
parental rights because the judgment, when the civil trial occurred, was
not final.
Before addressing Father’s argument about the admission of the
judgment of conviction in the trial over terminating his parental rights,
17Tex. R. Evid. 803(22)(A).
11
we will address Father’s argument complaining about the trial court’s
decision to admit the indictment that led to Father’s conviction for
Continuous Sexual Abuse of a Child. At trial, Father objected to the
indictment “because it is – it is just an indictment. It’s not a formal
charge, No. 1.”
Under the general rule of error preservation—the rule uniformly
followed by Texas courts—an objection a party makes in the trial must
comport with the claim the party raises on appeal. 18 Thus, “[a]n objection
stating one legal theory [at trial] may not be used to support a different
legal theory on appeal.” 19 Here, Father’s argument as to the indictment
does not comport with the objection he raised in the trial. 20 Since Father
failed to preserve the complaint he seeks to raise on appeal regarding the
indictment—that it was inadmissible under Rule 803(22)—he did not
preserve his right to have that part of the argument he raises reviewed
on appeal. 21
18Clarkv. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012).
19Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995)
(quoting Johnson v. State, 803 S.W.2d 272, 292 (Tex. Crim. App. 1990)).
20Gauldin v. State, 683 S.W.2d 411, 413 (Tex. Crim. App. 1984).
21Id.
12
To be sure, in many instances a judgment convicting a parent of one
of the sixteen offenses under Family Code Section 161.001(b)(1)(L) will
not be final when the trial of the family-law proceeding occurs. That’s
because family-law proceedings and appeals are on accelerated
timetables when compared to the time required to dispose of the typical
felony criminal trial. 22 Even though Father’s argument raises an
interesting legal issue that involves a question of statutory
interpretation, we need not decide whether the Family Code—which does
not require the defendant’s conviction to be final—or the Rule of
Evidence—which does require a conviction to be final—controls on the
record before us in this appeal. Here, the jury heard testimony describing
the relevant facts decided by the judgment in Father’s criminal case, and
the testimony about those facts was admitted without objection in the
civil trial about the termination of Father’s parental rights.
In trials to juries, it is the jury’s responsibility to evaluate and
decide what witnesses the jury chooses to believe. 23 On the jury’s findings
in this case, we must infer that the jury believed that Father engaged in
22See Tex. Fam. Code Ann. §§ 109.002(a) and 263.405(a); see also
Tex. R. App. P. 26.1(b).
23See In re J.W., 645 S.W.3d 726, 745 (Tex. 2022).
13
acts of sexual abuse like those his children described. We must also infer
the jury believed Father’s testimony that he incurred a conviction for
continuous sexual abuse of a child and that he received a ninety-nine-
year sentence. Thus the information in the judgment is cumulative of
other evidence admitted without objection in the trial.
Accordingly, we need not decide whether the Family Code or the
Rules of Evidence provide the guiding rule on the question of whether the
judgment Father has complained about was (or wasn’t) admissible.24 We
conclude that admitting the judgment of Father’s criminal conviction was
harmless because it didn’t cause the rendition of an improper judgment.25
24Even though we have not reached Father’s issue, we recognize
that several of our sister courts of appeal have done so. See In re A.N.,
No. 10-17-00006-CV, 2017 WL 2292171, at *3 (Tex. App.—Waco May 24,
2017, no pet.) (mem. op.); In re L.B., No. 05-13-01615-CV, 2014 WL
1102050, at *7-8 (Tex. App.—Dallas Mar. 20, 2014, no pet.) (mem. op.);
In re W.B.W., No. 11-11-00269-CV, 2012 WL 2856067, at *14 (Tex. App.—
Eastland July 12, 2012, pet. denied) (mem. op.); In re T.C.C.H., No. 07-
11-00179-CV, 2011 WL 6757409, at *9 (Tex. App.—Amarillo Dec. 22,
2011, no pet.) (mem. op.); Rian v. Tex. Dep’t of Family & Protective Servs.,
No. 03-08-00155-CV, 2009 WL 2341868, at *2 (Tex. App.—Austin July
31, 2009, pet. denied) (mem. op.). These courts would reject Father’s
argument and hold that Father’s conviction was admissible in the trial of
the case to terminate his parental rights because the offense for which he
was convicted is on the laundry list of offenses listed in Family Code
section 161.001(b)(1)(L).
25On appeal, Father does not challenge the legal and factual
sufficiency of any of the predicate findings to support termination, nor
14
Having overruled Father’s sole issue, we affirm the trial court’s order
terminating Father’s rights.
Conclusion
The order of the trial court is
AFFIRMED.
_________________________
HOLLIS HORTON
Justice
Submitted on April 4, 2023
Opinion Delivered May 11, 2023
Before Golemon, C.J., Horton and Johnson, JJ.
does he challenge the finding that termination is in the best interest of
the children. Accordingly, we do not address those grounds in our
analysis. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003); see also Tex. R.
App. P. 47.1. The unchallenged predicate findings are binding on this
court and sufficient to affirm the termination order. See Int. of R.S.C.,
No. 09-19-00174-CV, 2019 WL 5996358, at *4 (Tex. App.—Beaumont
Nov. 14, 2019, no pet.).
15