in the Interest of A.W., a Child ( 2019 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00057-CV
___________________________
IN THE INTEREST OF A.W., A CHILD
On Appeal from County Court at Law No. 2
Wichita County, Texas
Trial Court No. 12984-JR-F
Before Gabriel, Kerr, and Bassel, JJ.
Memorandum Opinion by Justice Gabriel
MEMORANDUM OPINION
Appellant Mark Waggoner1 (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.
Father 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 Mother2 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
We use aliases to refer to the affected child and her family members. See Tex.
1
R. App. P. 9.8(a)–(b).
2
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.
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older daughter, Alisa.3 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 sex offenses.
Before 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,4 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
3
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 removed Mother’s oldest two children before Ann was born.
4
This indictment alleged that Father was required to register as a sex offender
based on his prior conviction for indecency with a child.
3
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 prevalently.”
By 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).
Even 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
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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)).
We overrule Father’s sole issue and affirm the trial court’s final order of
termination. See Tex. R. App. P. 43.2(a).
/s/ Lee Gabriel
Lee Gabriel
Justice
Delivered: June 13, 2019
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