in the Interest of M. L. B. ( 2006 )

NO. 07-04-0350-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

JANUARY 4, 2006

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IN THE INTEREST OF M.L.B.



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FROM THE COUNTY COURT OF FLOYD COUNTY;

NO. 2004-06; HONORABLE WILLIAM D. HARDIN, JUDGE

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Before REAVIS and CAMPBELL and HANCOCK, JJ.

MEMORANDUM OPINION

Appellant M.L.B. challenges an order of disposition committing him to the Texas Youth Commission (TYC) for an indeterminate period. By a single issue, he contends the trial court abused its discretion because the evidence was insufficient to establish that his parents could not provide the level of care and support needed to meet the conditions of probation and that reasonable efforts had been made to prevent the need to remove him from the home. We affirm.

M.L.B. engaged in delinquent conduct involving his twelve-year-old niece. After stipulating to the State's evidence, M.L.B. was adjudicated for aggravated sexual assault, a first degree felony, and indecency with a child, a second degree felony. At the disposition hearing, the court heard testimony from Reba Moore, the chief juvenile probation officer. Moore testified to information obtained from a sex offender assessment administered to M.L.B. by Dr. Beth Shapiro, a licensed sex offender therapist. Doctor Shapiro's report was admitted into evidence without objection. Based on the report and the available placement options, Moore recommended that rehabilitation at a TYC facility would be in M.L.B.'s best interest and in the best interest of society. M.L.B.'s mother and uncle testified that he had not been in trouble at school or with the law prior to this incident.

At the conclusion of the evidence, the court issued an order pursuant to section 54.04(d)(2) of the Family Code committing M.L.B. to a TYC facility for an indeterminate period. In addition to the adjudicated offenses, the order listed the following reasons for the TYC placement:

(1) the said Juvenile-Respondent cannot be controlled or disciplined by either parent;

(2) it is in the best interest of the Juvenile-Respondent and for the protection of the community . . . .

Despite these reasons, M.L.B. contends the trial court abused its discretion because there was no evidence to support the findings required by sections 54.04(c) and 54.04(i) of the Family Code. We disagree.

Following an adjudication, a juvenile court has broad discretion to determine disposition. In re C.J.H., 79 S.W.3d 698, 702 (Tex.App.-Fort Worth 2002, no pet.). In reviewing a court's decision, we will not reverse a disposition unless the court abused its discretion. Id. Abuse of discretion is determined by whether the court acted without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). The mere fact that a trial judge may decide a matter within his discretionary authority in a different manner than an appellate judge does not demonstrate that an abuse of discretion has occurred. Id.

By his issue, M.L.B. contends the State's evidence is insufficient. However, the substance of his argument is a challenge to the legal sufficiency of the evidence. In determining whether the evidence is sufficient to support the disposition ordered, we apply a civil standard of review. In re J.P.R., 95 S.W.3d 729, 731 (Tex.App.-Amarillo 2003, no pet.). Therefore, when evaluating a "no evidence" legal sufficiency challenge, we review the entire record for any probative evidence which, when viewed in its most favorable light, supports the adverse finding. Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 782 (Tex. 2001); Raw Hide Oil & Gas, Inc. v. Maxus Exploration Co., 766 S.W.2d 264, 276 (Tex.App.-Amarillo 1988, writ denied). We disregard all evidence and inferences to the contrary. Lenz v. Lenz, 79 S.W.3d 10, 19 (Tex. 2002). If there is more than a scintilla of probative evidence to support the finding, we must uphold the judgment. Id.

Section 54.04(c) of the Family Code provides that no disposition placing the child outside of the home may be made unless a court finds "that the child, in the child's home, cannot be provided the quality of care and level of support and supervision that the child needs to meet the conditions of the probation." Tex. Fam. Code Ann. § 54.04(c) (Vernon Supp. 2005). Similarly, if a court commits the child to TYC, section 54.04(i) requires that it include in its disposition order the following determinations:

(A) [I]t is in the child's best interests to be placed outside the child's home;

(B) reasonable efforts were made to prevent or eliminate the need for the child's removal from the home and to make it possible for the child to return to the child's home; and

(C) the child, in the child's home, cannot be provided the quality of care and level of support and supervision that the child needs to meet the conditions of probation.

Id.

At the disposition hearing, a court "may consider written reports from probation officers . . . or professional consultants in addition to the testimony of witnesses." Id. at (b). Regarding the disposition in the present case, the court relied on the sex offender assessment summarized in Dr. Shapiro's report and the testimony of probation officer Reba Moore. Doctor Shapiro indicates in her report that M.L.B. admits committing the offense but shows a lack of empathy for the victim and is developing a "deviant pattern of sexual arousal." She recommends M.L.B. receive intensive sex offender treatment to deal with his sexual behavioral problems and recommends participation in treatment and support groups. Based on her assessment, Dr. Shapiro concludes there is a risk M.L.B. will reoffend unless he is placed in a secure facility where he can receive sex offender therapy.

In addition to Dr. Shapiro's report, Moore testified that a TYC commitment would be necessary to protect the victim and other children in the family and that TYC was the only secured facility in the court's jurisdiction with a sex offender therapy program. When questioned specifically regarding the quality of care and level of support in the home, Moore stated that, due to the closeness of the family and lack of supervision, the family interactions "might not protect the victim." She also stated her opinion that removal of M.L.B. from the home would be necessary for the healing of the family. Considering the evidence presented at the disposition hearing in a light favorable to the judgment, we conclude there is more than a scintilla of probative evidence to support the findings required by sections 54.04(c) and 54.04(i). M.L.B.'s issue is overruled.

Accordingly, the trial court's order of disposition is affirmed.

Don H. Reavis

Justice

troleum solution in the pasture where Meyer's cows were located is undisputed. Meyer testified that 100 per cent of his cows delivered calves the first year he owned them and they were bred to start calving March 1, 2001, or thereafter. Also, he testified that after he saw the cows licking and smelling the oil at the leak site, one cow aborted her calf the next day and that over a period of time, 30 cows aborted or had dead calves and the next year, 17 of 39 remaining cows were barren or had calves that died. Meyer also testified that, in his opinion, the calving problem was caused by the cows ingesting the oil or other liquid at the leak site and he did not know of any other reason that could have caused the calving problems. ⁽⁴⁾ Doctor Skaggs, DVM and another veterinarian testified that, among other possible known factors, drinking oil can cause cows to abort their calves.

Reviewing this evidence in light of the circumstantial evidence instruction and considering the evidence favorable to the verdict only, an inference of causation is presented by the objective facts. Duke argues that expert testimony is necessary to establish causation unless general experience and common sense will enable a layman to fairly determine the causal relationship between the occurrence and the injury. Because Duke did not object to the testimony of Meyer, and this contention was not otherwise presented to the trial court, it may not be considered for the first time on appeal. State of Cal. Dept. of Mental Hygiene v. Bank of the S.W. Nat. Ass'n, 163 Tex. 314, 354 S.W.2d 576, 581 (1962). Then, citing E. I. du Pont de Nemours and Co., Inc. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995), Duke, however, argues the evidence is not sufficiently relevant and reliable to meet the requirements of Rule 702 of the Texas Rules of Evidence. However, Robinson is not controlling here because it was concerned with the admissibility of evidence which is not at issue here. Moreover, by its failure to object to Meyer's opinion as being unreliable, Duke waived any contention that the opinion was unreliable. See Guadalupe-Blanco River Authority v. Kraft, 77 S.W.3d 805, 807 (Tex. 2002); Texas Dept. of Human Services v. Green, 855 S.W.2d 136,149 (Tex.App.-Austin 1993, writ denied). Also, Duke's failure to request a limiting instruction regarding the causation opinion of Meyer per Rule 105(a) of the Texas Rules of Evidence, it waived its complaint to general admission of the evidence. Birchfield v. Texarkana Memorial Hosp., 747 S.W.2d 361, 365 (Tex. 1987). Considering only the evidence and the reasonable inferences which can be drawn therefrom in their most favorable light to support the jury's findings and disregarding all contrary evidence and inferences, we conclude the evidence was legally sufficient to support the jury findings to question 2 and question 3(b). Accordingly, issue one is overruled.

By its second issue, Duke contends the evidence was factually insufficient to support a finding of causation. We agree.

Having found there is some evidence to support the findings, we now review and consider all of the evidence to determine if the verdict is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. In addition to the evidence mentioned above, in summary form, according to the record:

• •Although Meyer saw the cows standing at the leak site while licking and sticking their noses in the surface, there is no evidence that the cows actually ingested oil; or if they did, the quantity of the oil ingested.
• •Meyer guessed that five or six cows may have ingested oil but there was no evidence identifying which cows may have ingested oil.
• •Dr. Skaggs and Dr. Halliburton testified there are numerous factors which can cause cows to abort calves, but there was no evidence showing the quantity of oil required to cause a cow to abort her calf.
• •Dr. Skaggs and Dr. Halliburton testified that numerous potential causes of the abortions were not ruled out by testing.
• •Lab results were inclusive for oil exposure.
• •Afterbirth of cows was not tested for traces of petroleum.
• •Lab results of the three cows tested did not indicate oil exposure and no oil found in stool samples.
• •Dr. Skaggs testified the initial effect of oil ingestion causes cattle to stumble and slobber and have muscle seizures and spasms; however there was no evidence of this behavior.
• •Blood test revealed the cows were low in protein and magnesium and other minerals. Results showed poor nutrition which could have been a factor.
• •Dr. Skaggs admitted that based on the lab results, oil exposure would be impossible to prove.
• •Dr. Halliburton concluded that to a reasonable veterinary certainty, he could not testify it was more likely than not the Meyer's cows aborted calves or died due to the oil ingestion.

Hinkle was not required to establish causation by a scientific certainty or exclude every other possibility. Purina Mills, 948 S.W.2d at 936. However, because the evidence suggests that several conditions or events could have caused the cows to abort their calves and where, as here, circumstances are consistent with either of two or more facts and nothing shows that one is more probable than the other, neither fact may be inferred. See Roth v. FFP Operating Partners, L.P., 994 S.W.2d 190, 197 (Tex.App.- Amarillo 1999, pet. denied). Considering all of the evidence as a whole, we find the evidence factually insufficient to support a finding that in reasonable probability the ingestion of the oil by the cows caused injuries to them. Accordingly, Duke's second issue is sustained.

Having sustained Duke's second issue and concluded that the judgment of the trial court must be reversed and the cause remanded, we do not address the remaining issues and cross-points because further review is unnecessary, Tex. R. App. P. 47.1, and could amount to an advisory opinion. Valley Baptist Medical Center v. Gonzalez, 33 S.W.3d 821, 822 (Tex. 2000).

Accordingly, we affirm that part of the judgment that Eddith M. Hinkle recover the sum of $1,000 for damages to her land and related attorney's fees in the amount of $3,186 from Duke; otherwise, in all other respects, the judgment is reversed and the cause is remanded to the trial court for further proceedings.

Don H. Reavis

Justice

1. The judgment signed July 28, 2004, did not make any award to Glendell Meyer or Rose Marie Meyer.

2. At the time of trial, Duke was the assignee of record of the May 21, 1970 easement.

3. Cf. Purina Mills, Inc. v. Odell, 948 S.W.2d 927, 936 (Tex.App.-Texarkana 1997, writ denied); Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995).

4. Duke did not present any objection grounded on Texas Rules of Evidence 701, 702, or otherwise.