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S. A. v. Texas Department of Family And Protective Services

Court of Appeals of Texas, Third District, Austin

March 1, 2018

S. A., Jr., Appellant
v.
Texas Department of Family and Protective Services, Appellee

         FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT NO. 286, 872-B, HONORABLE JACK WELDON JONES, JUDGE PRESIDING

          Before Justices Puryear, Pemberton, and Bourland

          MEMORANDUM OPINION

          David Puryear, Justice

         After a jury trial, the trial court signed an order terminating the parental rights of both S.A., Jr. ("Samuel") and A.A. ("Angela")[1] to their child, "David, "[2] who was about seventeen months old at the time of trial. Samuel appeals the termination order, contending that (1) the trial court abused its discretion in failing to grant a mistrial because of Angela's allegedly prejudicial telephone conversation in the presence of prospective jurors during the voir-dire phase of trial, and (2) the evidence was legally and factually insufficient to show that termination of his parental rights was in David's best interest. We affirm the trial court's order.

         STANDARD OF REVIEW

         A trial court may terminate a parent's rights to his child if clear and convincing evidence shows that (1) a parent has committed conduct that amounts to a statutory ground for termination and (2) termination of his rights would be in the child's best interest. Tex. Fam. Code § 161.001; In re S.M.R., 434 S.W.3d 576, 580 (Tex. 2014). In reviewing the legal sufficiency of the evidence in such a case, we look at all the evidence in the light most favorable to the finding to determine whether a reasonable factfinder could have formed a firm belief or conviction that the finding was true. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (quoting In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)). We assume that the factfinder resolved disputed facts in favor of the finding if a reasonable factfinder could do so, and we disregard all evidence that a reasonable factfinder could have disbelieved or found to be incredible. Id.; see In re K.M.L., 443 S.W.3d 101, 112-13 (Tex. 2014). We "should not disregard undisputed facts that do not support" the determination, and "even evidence that does more than raise surmise and suspicion will not suffice unless that evidence is capable of producing a firm belief or conviction that the allegation is true." K.M.L., 443 S.W.3d at 113.

         In evaluating factual sufficiency, we view the entire record and uphold the finding unless the disputed evidence that could not reasonably have been credited in favor of a finding is so significant that the factfinder could not reasonably have formed a firm belief or conviction that the Department's allegations were true. In re A.B., 437 S.W.3d 498, 502-03 (Tex. 2014) (quoting J.F.C., 96 S.W.3d at 266; In re C.H., 89 S.W.3d 17, 25-26 (Tex. 2002)). We defer to the factfinder's reasonable determination on issues of credibility that involve an evaluation of appearance or demeanor. J.P.B., 180 S.W.3d at 573 (quoting Southwestern Bell Tel. Co. v. Garza, 164 S.W.3d 607, 625 (Tex. 2004)); see A.B., 437 S.W.3d at 503 (requiring reviewing court to defer to "factfinder, who, having full opportunity to observe witness testimony first-hand, is the sole arbiter when assessing the credibility and demeanor of witnesses").

         We review a trial court's ruling on a motion for mistrial for abuse of discretion, upholding the ruling if it is within the "zone of reasonable disagreement." Coble v. State, 330 S.W.3d 253, 292 (Tex. Crim. App. 2010).

         SUMMARY OF THE EVIDENCE

         The testimony and other proffered evidence that might be relevant to the jury's best-interest finding was as follows:

• The affidavit of a Child Protective Services Investigator, which detailed an assault by Samuel on Angela during which he hit her while she was holding David and that, as a result, the infant "went flying out of her hands." Samuel was able to catch David before he hit the floor. In her live testimony, the investigator further elaborated: "He [Samuel] caught the baby, put him on the couch and went back to beating [Angela] again." Angela testified similarly to this incident. Samuel pleaded "no contest" to an assault charge arising from the incident.
• The investigator testified that Angela had told her that Samuel's domestic violence had been occurring for five of the six years the couple had been together, that Samuel had "poured hot boiling water" on Angela a few months before David was born, and that Samuel used and sold illegal drugs in the home.
• Samuel's criminal records indicate a conviction for possession of a controlled substance, less than one gram (methamphetamine), after he violated the terms of his deferred adjudication community supervision.
• Angela testified that Samuel used methamphetamines while they were living together, including a time they used the drug together when she was ...

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