in the Interest of M.P.B. ., Children ( 2022 )

AFFIRMED as MODIFIED and Opinion Filed September 12, 2022
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-00399-CV
IN THE INTEREST OF M.P.B., ET AL., CHILDREN
On Appeal from the 304th Judicial District Court
Dallas County, Texas
Trial Court Cause No. JC-20-00678-W
MEMORANDUM OPINION
Before Justices Schenck, Osborne, and Smith
Opinion by Justice Smith
The Texas Department of Family and Protective Services filed suit to
terminate Mother and Father’s parental rights to their four children, M.P.B., M.L.B.,
Z.R.B., and C.P.B. After a jury trial, the trial court signed a judgment terminating
their parental rights and appointing the Department permanent managing
conservator of all four children. Mother and Father separately appeal.
In two issues, Mother argues the trial court erred by admitting certain digital
evidence, and the testimony of a CPS worker impermissibly biased the jury against
her. Because the trial court did not err in its evidentiary rulings, we affirm the
judgment against Mother.
Father contends he received ineffective assistance of counsel because counsel
failed to object, file a motion for new trial, or file a motion to modify, correct, or
reform the judgment, which incorrectly included termination findings not submitted
or found by the jury. The State concedes the judgment against Father should be
modified to conform to the jury’s verdict. As modified, we affirm the judgment
against Father.
Factual Background
Mother and Father have not challenged the sufficiency of the evidence
supporting the judgment terminating their parental rights; therefore, we provide the
following brief recitation of facts. See TEX. R. APP. P. 47.1.
Mother and Father had been in a relationship for ten years and had four
children together, M.P.B., M.L.B., Z.R.B., and C.P.B. Both parents used marijuana
and methamphetamine and had been arrested for their drug use.
In 2016, the Department conducted a welfare check after someone complained
the children were dirty and Mother and Father used drugs in front of the children.
CPS received another referral in 2017 after a complaint about their drug use and
neglectful supervision. After investigations, both incidents were ruled out.
The incident giving rise to the termination proceeding occurred on August 18,
2020. Mother found Father in the garage smoking methamphetamine. Mother
alleged she was “done” with him and tossed a cigarette accidentally hitting Father’s
face. Mother ran inside the house, but Father chased her, grabbed her hair, slapped
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her face, and pushed her down causing various injuries. She briefly left, returned to
the home, tried to leave again, but Father threatened to kill her and threw her off the
front porch. Although Father did not hurt the children, they witnessed their parents’
violent interaction. Mother called the police, but Father left with the children before
officers arrived.
Mother told officers Father gave her a black eye on August 17, 2020, but she
did not report it. She also said Father had recently purchased two eight balls of
methamphetamine, fallen asleep with the bag of drugs near him, and one of the
children found it. Mother indicated Father had abused her for years.1
CPS removed the children because of “neglectful supervision and physical
abuse.” Three out of the four children tested positive for methamphetamine, and the
eight-month-old tested positive for marijuana. The Department subsequently filed
an original petition for the protection of the children, for conservatorship, and for
termination of the parent-child relationship with the four children. The trial court
gave the Department temporary custody of the children and placed them in foster
care. The trial court ordered Mother and Father to participate in numerous services
with the goal of family reunification.
At the time of trial, Mother had not completed her services, and the
Department did not believe she was invested in the court-ordered classes but instead
1
At trial, Mother denied any prior abuse and testified August 18, 2020 was the first domestic violence
incident.
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was merely trying to “check the boxes.” Father also showed little interest in
changing his behavior. During their visitations, issues with their parenting abilities
were observed. The Department also expressed concern that Mother had not broken
the cycle of domestic abuse and continued contact with Father.
The Department recommended terminating Mother and Father’s parental
rights. The Department considered placement with other family members, but after
conducting home studies, they were ruled out for various reasons, which included
drug use. The children were thriving in their foster homes, and both families were
willing to adopt if given the opportunity.
The jury determined the evidence supported termination of Mother and
Father’s parental rights to the children and appointed the Department managing
conservator. The trial court subsequently signed a judgment that did not conform to
the jury’s verdict with respect to Father. This appeal followed.
Mother’s Appeal
Admission of Digital Evidence
In her first issue, Mother argues the trial court abused its discretion by
admitting into evidence a screen shot of a $5 transaction on a cash app between
Mother and Father because the exhibit was not properly authenticated. She contends
the wrongfully admitted screenshot created a situation in which the jury based its
best interest determination entirely on unreliable evidence.
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We review a trial court’s decision to admit evidence for an abuse of discretion.
In re E.A.K., 192 S.W.3d 133, 140 (Tex. App.—Houston [14th Dist.] 2006, pet.
denied). A trial court abuses its discretion when it rules without regard to any
guiding rules or principles. Id. We must uphold the trial court’s evidentiary ruling
if there is any legitimate basis for it. See Owens-Corning Fiberglas Corp. v. Malone,
972 S.W.2d 35, 43 (Tex. 1998). A trial judge is given considerable latitude with
regard to evidentiary rulings, and different judges may reach different conclusions
in different trials on substantially similar facts without abusing their discretion. See
Winegarner v. State, 235 S.W.3d 787, 791 (Tex. Crim. App. 2007).
The requirement of authentication as a condition precedent to admissibility
may be satisfied by “evidence sufficient to support a finding that the matter in
question is what the proponent claims.” TEX. R. EVID. 901(a); In re J.P.B., 180
S.W.3d 570, 575 (Tex. 2005). Conclusive proof of authenticity before allowing
admission of disputed evidence is not required; instead, rule 901 requires only “some
evidence” to support a finding that the evidence at issue is what the proponent says
it is. Delgado v. State, 635 S.W.3d 730, 755 (Tex. App.—Dallas 2021, pet. ref’d)
(citing Fowler v. State, 544 S.W.3d 844, 848 (Tex. Crim. App. 2018)). It is the
jury’s role to ultimately determine whether an item of evidence is indeed what its
proponent claims. Id. (citing Butler v. State, 459 S.W.3d 595, 600 (Tex. Crim. App.
2015)). This has been described as a “liberal standard of admissibility.” Fowler,
544 S.W.3d at 849.
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Mother testified she broke up with Father in November 2020 and did not see
or communicate with him again until June 25, 2021. When the Department asked
about sending Father money on April 22, 2021, she admitted Father asked her for
money, but she denied his request. The Department then asked Mother if she
recognized exhibit 41. She identified it as “Cash app,” acknowledged her name on
it, and identified “two hearts and a money symbol or smiley face” underneath her
name. She was not surprised when the Department told her the cash app screenshot
was from Father’s phone.
The Department then moved to admit exhibit 41, and Father objected because
Mother had not verified that she replied “so it’s untrustworthy.” The Department
responded that Mother had identified her name on the exhibit, that Father had asked
her for money, and she knew the cash app screenshot originated from Father based
on information she received from CPS. The trial court overruled Mother’s objection
and admitted exhibit 41. Mother subsequently testified that she did not remember
when she sent the money, and it could have been prior to November 2020 when they
were still together. She explained, “There’s no telling when that was sent.”
Conclusive proof of authenticity is not required before allowing admission of
disputed evidence. See Delgado, 635 S.W.3d at 755. The Department needed to
only provide “evidence sufficient to support a finding that the matter in question is
what the proponent claims.” TEX. R. EVID. 901(a). The Department provided “some
evidence” from which the trial court, acting within its broad discretion, could
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preliminarily determine that the Department supplied sufficient facts supporting a
reasonable jury’s determination that exhibit 41 was authentic.
Because the trial court’s ruling was “within the zone of reasonable
disagreement,” we, as the reviewing court, should not interfere. Accordingly, the
trial court did not abuse its discretion by overruling Mother’s authenticity objection
to exhibit 41. In reaching this conclusion, we reject Mother’s argument regarding
the difficulty of deciphering the meanings of emojis in a changing digital world
because Mother made no arguments or objections regarding the interpretation of the
symbols in exhibit 41. See TEX. R. APP. P. 33.1. We overrule Mother’s first issue.
Evidence Biasing Jury
In her second issue, Mother contends the testimony of Amber Kohrman, a
CPS worker, was prejudicial because she testified to two prior CPS referrals
regarding Mother and Father despite the referrals being “ruled out” after
investigations. The Department responds Mother failed to preserve her issue for
review because she did not object to similar, subsequent testimony, and she never
sought an instruction to disregard or asked for a mistrial.
During the direct examination of Kohrman, the following exchange occurred:
Q: Now, if you do not have enough evidence, does that mean that
the allegation is false?
A: No.
Q: As of today, based on the evidence that we have in this case, do
you believe those allegations in 2016 and 2017 to be true?
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A: Yes.
[Counsel]: Objection, Your Honor; calls for speculation; lack of
proper predicate.
Court: Sustained.
Mother did not request an instruction to disregard or seek a mistrial.
Mother argues similar testimony continued throughout the rest of the trial with
repeated, direct insinuation about the prior CPS referrals. She cites to four additional
instances in which the topic was broached, including closing argument when the
Department mentioned the 2016 and 2017 referrals. Mother did not object to any of
these statements.
Texas Rule of Civil Procedure 33.1 requires a party to make a timely request,
objection, or motion before presenting the complaint for appellate review. See TEX.
R. APP. P. 33.1(a). If a party objects to certain evidence, but later does not object
when the same or similar evidence is introduced, the party waives the objection. See
JNM Express, LLC v. Lozano, 627 S.W.3d 682, 697 (Tex. App.—Corpus Christi-
Edinburg 2021, pet. filed). Because Mother failed to request a limiting instruction
or motion for mistrial and failed to object to the subsequent, similar testimony
regarding CPS’s involvement in 2016 and 2017, she waived appellate review of her
complaint. See TEX. R. APP. P. 33.1; see also Anderson v. State, 932 S.W.2d 502,
507 (Tex. Crim. App. 1996) (en banc).
To the extent Mother suggests requesting a limiting instruction would have
been futile because the Department’s questions and elicited answers were so
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prejudicial that it was impossible to withdraw the impression produced in the minds
of the juror, we disagree. After reviewing the record, we conclude the unobjected-
to questions and answers were not calculated to inflame the minds of the jury and
did not create a prejudicial impression that was impossible to erase from the juror’s
minds had counsel made such a request. See, e.g., Spruill v. State, No. 05-01-01414-
CR, 2003 WL 21508441, at *7–8 (Tex. App.—Dallas July 2, 2003, pet. ref’d) (not
designated for publication). Mother’s second issue is overruled.
Father’s Appeal
Father argues counsel’s performance fell below an objective standard of
reasonableness by failing to file a motion for new trial or any other post-judgment
motion challenging the final judgment, which contained two statutory grounds for
termination of his parental rights that were not submitted to the jury. He contends
he was harmed by counsel’s deficient performance.2
Ineffective assistance of counsel claims in parental-termination cases, as in
criminal cases, are governed by the two-prong test articulated in Strickland v.
Washington. See In re M.S., 115 S.W.3d 534, 544–45 (Tex. 2013); see also In re
D.T., 625 S.W.3d 62, 73–74 (Tex. 2021). It requires Father to show counsel’s
2
Father briefly argues counsel’s failure to file a motion for new trial foreclosed his ability to challenge
the legal and factual sufficiency of the evidence supporting termination; however, his “primary focus here”
is that he was “prejudiced and harmed by the failure of counsel to preserve his claim of error regarding the
defective judgment.” Therefore, we confine our review to this issue. Moreover, Father has not provided
any argument, legal authority, or citations to the record as to why the evidence is legally or factually
insufficient to support the jury’s verdict. Accordingly, Father waived any sufficiency challenge. See In re
S.V., 599 S.W.3d 25, 41 (Tex. App.—Dallas 2017, pet. denied) (waiving sufficiency complaint when Father
provided no legal authority, citation to record, or substantive analysis in brief).
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performance was deficient and that the deficient performance prejudiced him.
Strickland v. Washington, 466 U.S. 668, 687 (1984). A party claiming ineffective
assistance of counsel must satisfy both Strickland prongs to succeed. M.S., 115
S.W.3d at 545. However, a court need not address the prongs in order or even
address both components if Father makes an insufficient showing on one prong.
Strickland, 466 U.S. at 697.
Because we can dispose of Father’s argument under the prejudice prong, we
address it first. Id.; Smith v. State, 286 S.W.3d 333, 342 (Tex. Crim. App. 2009)
(declining to analyze whether first Strickland prong was met because second prong
was not). A party is prejudiced if “there is a reasonable probability that, but for
counsel’s unprofessional error(s), the result of the proceeding would have been
different.” See M.S., 115 S.W.3d at 550.
Here, the Department initially requested termination of Father’s parental
rights based on numerous section 161.001(b)(1) grounds, including (D), (E), and
(O). The jury, however, was asked to consider only ground (D) and best interest for
each of Father’s four children as follows:
Do you find by clear and convincing evidence that the father, [Z.B.,
SR.,] knowingly placed or knowingly allowed the child [child’s name]
to remain in conditions or surroundings which endanger the physical or
emotional well-being of the child, [child’s name]?
The jury answered “yes” to each child.
Do you find by clear and convincing evidence that termination of the
parent-child relationship between the Father, [Z.B., SR.], and the child
[child’s name], would be in the best interest of [child’s name]?
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The jury answered “yes” to each child. The judgment, however, includes paragraphs
terminating Father’s parental rights based on section 161.001(b)(1)(E) and (O)
violations.
We agree the final judgment does not conform with the jury’s findings, and
the Department raises a cross-issue asking this Court to modify the judgment to
delete paragraphs 12.2.2 (terminating parental rights under paragraph (E)) and 12.2.3
(terminating parental rights under paragraph (O)). We have the power to reform an
incorrect judgment “to speak the truth” when we have the necessary information to
do so. See In re M.D., 333 S.W.3d 600, 601 (Tex. App.—Dallas 2007, no pet.)
(citing Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—Dallas 1991, pet. ref’d));
see also TEX. R. APP. P. 42.3(b). When a judgment improperly reflects the findings
of a jury, the proper remedy is to reform the judgment. Asberry, 813 S.W.3d at 529.
Accordingly, we reform the judgment to delete paragraphs 12.2.2 and 12.2.3. We
sustain the Department’s cross-issue.
By sustaining the Department’s cross-issue, any potential prejudice from
counsel’s failure to file a motion for new trial or other post-judgment motions
disappears. In reaching this conclusion, we reject Father’s argument that he was
prejudiced because section 161.001(b)(1)(M) authorizes termination of a parent-
child relationship based on a previous termination under (D) or (E) grounds. See
TEX. FAM. CODE ANN. § 161.001(b)(1)(M). Father has not challenged the jury’s (D)
finding, which carries the same collateral consequence as (E). See TEX. FAM. CODE
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ANN. § 161.001(b)(1)(M). Therefore, under the facts of this case, we cannot
conclude Father has shown prejudice rising to the level of ineffective assistance of
counsel because counsel failed to file a motion for new trial or other post-judgment
motions challenging the incorrect judgment.
Moreover, appellate counsel represented Father for eighteen days in which he
likewise could have filed a post-judgment motion, but did not. 3 Instead, appellate
counsel quickly moved forward and filed a notice of appeal. While we question both
counsels’ failure to file post-judgments motions to correct the obvious error, we
cannot conclude that Father has been prejudiced under the second Strickland prong.
We overrule Father’s sole issue.
Conclusion
As modified, we affirm the judgment terminating the parental rights of Father
and Mother to M.P.B., M.L.B., Z.R.B., and C.P.B.
/Craig Smith/
CRAIG SMITH
JUSTICE
220399F.P05
3
The trial court signed the judgment on May 2, 2022. The trial court appointed appellate counsel on
May 5, 2022. Appellate counsel filed Father’s notice of appeal on May 12, 2022; however, the deadline
for filing the accelerated notice of appeal was May 23, 2022. See TEX. R. CIV. P. 26.1(b).
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF M.P.B., ET On Appeal from the 304th Judicial
AL., CHILDREN District Court, Dallas County, Texas
Trial Court Cause No. JC-20-00678-
No. 05-22-00399-CV W.
Opinion delivered by Justice Smith.
Justices Schenck and Osborne
participating.
In accordance with this Court’s opinion of this date, the judgment of the trial
court is MODIFIED to DELETE the following:
12.2.2. engaged in conduct or knowingly placed the child with persons who
engaged in conduct which endangers the physical or emotional well-being of the
child, pursuant to § 161.001(b)(1)(E), Texas Family Code;
12.2.3 failed to comply with the provisions of a court order that specifically
established the actions necessary for the father to obtain the return of the child who
has been in the permanent or temporary managing conservatorship of the
Department of Family and Protective Services for not less than nine months as a
result of the child’s removal from the parent under Chapter 262 for the abuse or
neglect of the child, pursuant to § 161.001(b)(1)(O), Texas Family Code;
In all other respects, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee, the Texas Department of Family and
Protective Services, recover its costs of this appeal from appellants Zachary Byram,
Sr. and Page Clayton.
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Judgment entered September 12, 2022.
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