Court of Appeals of Texas, Second District, Fort Worth
Appeal from County Court at Law No. 2 Wichita County, Texas
Trial Court No. 12984-JR-F
Gabriel, Kerr, and Bassel, JJ.
Mark Waggoner (Father) appeals from the trial
court's order terminating his parental rights to his
daughter, Ann Waggoner. See Tex. Fam. Code Ann.
§ 161.206(a). In a sole issue, Father argues that the
trial court abused its discretion by admitting hearsay
evidence that he had been indicted for compelling
prostitution, for failing to register as a sex offender, and
for five counts of sexual assault of a child. We conclude
that the trial court did not abuse its discretion by
admitting the indictments and affirm the trial court's
final order of termination.
does not attack the sufficiency of the evidence to support
the jury's finding that he violated a conduct ground
listed in section 161.001 or to support the jury's
finding that the termination of Father's parental rights
was in Ann's best interest. See id. §
161.001(b). Accordingly, it is enough to state that Ann was
removed from Mother and Father's care at the time of her
birth based on their prior involvement with appellee the
Department of Family and Protective Services (DFPS) regarding
Mother's two older children with another man and Mother
and Father's older daughter, Alisa. Some of
DFPS's concerns at removal were that Father was required
to register as a sex offender, that Father had fully complied
with no offered services at the time Ann was born or at any
point thereafter, that DFPS had found reason to believe that
Father had inappropriately touched one of Mother's oldest
two children, and that Father had been indicted for several
the start of the evidentiary portion of Father's
termination trial, DFPS offered into evidence several
certified court records relating to Father's past
indictments for compelling prostitution of a child younger
than eighteen, for failing to register as a sex
offender, and for five counts of sexual assault of a
child. The trial court admitted the compelling-prostitution
and failure-to-register indictments over Father's
relevance and hearsay objections. The trial court sustained
Father's objections as to other proffered documents
relating to those indictments, including the probable-cause
affidavits, and excluded those documents. Father additionally
objected to admission of the sexual-assault indictment on the
basis of relevance, which the trial court overruled. The
trial court granted Father a running objection to each
admitted indictment. Father now argues on appeal that the
admission of the certified indictments was an abuse of
discretion because they constituted inadmissible hearsay and
that he is entitled to a new trial because their use was
"so damaging" and were "featured so
arguing only relevance to the trial court when objecting to
the sexual-assault indictment, it appears at first blush that
Father failed to preserve his appellate hearsay argument.
See Tex. R. App. P. 33.1(a)(1)(A); Tex. R. Evid.
103(a)(1)(B); Thomas v. State, 226 S.W.3d 697,
704–05 (Tex. App.-Corpus Christi–Edinburg 2007,
pet. dism'd); see also Bushell v. Dean, 803
S.W.2d 711, 711–12 (Tex. 1991) (per curiam) (op. on
reh'g). But we conclude that Father did not waive this
issue because the other indictments had been admitted over
his hearsay objection immediately before the State offered
the sexual-assault indictments, allowing Father to assume
that the trial court's ruling would be the same and
relieving him of the duty to again object on the basis of
hearsay to this similar evidence. See, e.g.,
Leaird's, Inc. v. Wrangler, Inc., 31 S.W.3d 688,
690–91 (Tex. App.-Waco 2000, pet. denied) (op. on
reh'g); Atkinson Gas Co. v. Albrecht, 878 S.W.2d
236, 243 (Tex. App.-Corpus Christi–Edinburg 1994, writ
denied); City of Fort Worth v. Holland, 748 S.W.2d
112, 113 (Tex. App.-Fort Worth 1988, writ denied).
so, we cannot conclude that the trial court abused its
discretion by admitting the indictments over Father's
objections. See generally In re J.P.B., 180 S.W.3d
570, 575 (Tex. 2005) (applying abuse-of-discretion standard
to review of trial court's decision to admit or exclude
evidence at termination trial). The indictments were public
records that "are not excluded by the rule against
hearsay." Tex. R. Evid. 803(8). As such, the indictments
were admissible over Father's hearsay objection. See,
e.g., T.W. v. Tex. Dep't of Family &
Protective Servs., No. 03-18-00347-CV, 2018 WL 4100799,
at *7 (Tex. App.-Austin Aug. 29, 2018, no pet.) (mem op.)
(dictum); Adi v. Prudential Prop. & Cas. Ins.
Co., No. 01-03-00063-CR, 2004 WL 1472012, at *3 (Tex.
App.-Houston [1st Dist.] July 1, 2004, pet. denied) (mem.
op.); cf. In re J.R., No. 02-15-00394-CV, 2016 WL
1267937, at *6 (Tex. App.-Fort Worth Mar. 31, 2016, no pet.)
(mem. op.) (holding father's indictment for possession of
child pornography admissible as relevant to determinations
under section 161.001(b)).
overrule Father's sole issue and affirm the trial
court's final order of termination. See Tex. R.
App. P. 43.2(a).
We use aliases to refer to the affected
child and her family members. See Tex. R. App. P.
Mother signed an unrevoked
relinquishment of her parental rights to Ann, and the jury
found that termination of Mother's parental rights was in
Ann's best interest. The termination of Mother's
parental rights is not at issue in this appeal.
DFPS removed Alisa from Mother and
Father's care before Ann was born, and their parental
rights to her were later terminated. Ann currently is in
foster care with the same family that is adopting Alisa. The
foster parents intend to adopt Ann as well. DFPS also ...