in the Interest of C.B. and J.B., Children ( 2012 )

NUMBER 13-11-00472-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN THE INTEREST OF C.B. AND J.B., CHILDREN
On appeal from the 135th District Court
of Victoria County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Garza and Vela
Memorandum Opinion by Chief Justice Valdez
In this suit affecting the parent-child relationship, appellant, Beatrice Rubio,
appeals by four issues the trial court’s order granting appellee, Jason M. Burmeister, the
exclusive right to designate the primary residence of the couple’s two children. We
affirm.
I. BACKGROUND
Appellant and appellee were divorced in Victoria, Texas in 2005. The divorce
decree designated appellant and appellee joint managing conservators of their two
minor daughters, C.B. and J.B. At that time, appellant was granted the exclusive right
to designate the primary residence of the children. Subsequently, appellant moved with
the children from Victoria to Albuquerque, New Mexico.
The case was reopened in 2006, after C.B. made an outcry of sexual abuse by
appellant’s boyfriend, Lonnie Taylor. In 2007, the court ordered appellant to return C.B.
to Victoria to reside with appellee. J.B. continued to reside with appellant in
Albuquerque until 2009, when the parties agreed to an order that gave appellee the
exclusive right to designate the primary residence of both children. Thereafter, J.B.
returned to Victoria to reside with appellee.
The case was reopened again in 2010, when appellee filed a petition to modify
the parent-child relationship, alleging that the children had been “emotionally abused”
by appellant and requesting that appellant be limited to supervised visitation with the
children because of the “danger of further emotional abuse.” Subsequently, appellant
filed a counter-petition to modify the parent child relationship, requesting that the court
grant her the exclusive right to designate the primary residence of the children.
A bench trial was held on February 7 and 8, 2011. The court heard testimony
from eight witnesses: (1) Sherry Yvonne Chambliss, C.B.’s counselor; (2) Kim
Stanfield, J.B.’s counselor; (3) appellant; (4) Maria Rodriguez, appellant’s cousin; (5)
appellee; (6) Leticia Garza, appellant’s aunt; (7) L.G., appellant’s 14-year-old son and
half-brother to C.B. and J.B.; and (8) Kim Frost, appellant’s attorney (on the issue of
attorney’s fees). Although appellant made two requests that the trial court interview
C.B. in chambers, both requests were denied.
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The trial court ruled that “based upon the credible evidence that the Court has
heard [appellee] should have the authority to designate the [primary] residence of the
children.” This appeal ensued.
II. ANALYSIS
A. Issue One
In her first issue, appellant complains that “the entire record reveals that the trial
court erred and abused its discretion in determining the best interest of C.B. and J.B.”
1. Standard of Review
In determining which joint managing conservator will have the exclusive right to
establish the primary residence of the children, the trial court is vested with broad
discretion. See In re K.L.W., 301 S.W.3d 423, 428 (Tex. App.—Dallas 2009, no pet.);
see also D.W.J.B., 362 S.W.3d 777, 780 (Tex. App.—Texarkana 2012, no pet.) (“We
review a trial court's decision regarding custody, control, and possession matters
involving a child under an abuse of discretion standard.”). The trial court’s judgment will
be disturbed only where the record as a whole shows that the trial court abused its
discretion. Strong v. Strong, 350 S.W.3d 759, 765 (Tex. App.—Dallas 2011, pet.
denied) (citing Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982)). An appellate
court cannot conclude that a trial court abused its discretion merely because the
appellate court would have ruled differently in the same circumstances. Moreno v.
Perez, 363 S.W.3d 725, 737 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (citing E.I.
du Pont de Nemours & Co., Inc. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995)); see
also Pena v. Pena, 8 S.W.3d 639, 639 (Tex. 1999) (per curiam) (“[T]he trial court is
vested with wide discretion in determining custody issues.”).
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A trial court abuses its discretion if it acts arbitrarily and unreasonably or without
reference to guiding principles. K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex.
2000); In re T.D.C., 91 S.W.3d 865, 872 (Tex. App.—Fort Worth 2002, pet. denied). A
trial court does not abuse its discretion when it makes a decision on conflicting
evidence. Burns v. Burns, 116 S.W.3d 916, 921 (Tex. App.—Dallas 2003, no pet.). If
some evidence of a substantive and probative character exists to support the trial
court’s decision, there is no abuse of discretion. In re C.C.J., 244 S.W.3d 911, 917
(Tex. App.—Dallas 2008, no pet.); see also In re J.C., 346 S.W.3d 189, 193 (Tex.
App.—Houston [14th Dist.] 2011, no pet.).
In this case, the trial court did not file findings of fact and conclusions of law.
Therefore, it is implied that the trial court made all the necessary findings to support its
final order. See Burns, 116 S.W.3d at 920. The judgment will be upheld on any legal
theory that finds support in the evidence. Strong, 350 S.W.3d at 765; see also In re
A.N.O., 332 S.W.3d 673, 676 (Tex. App.—Eastland 2010, no pet.).
2. Applicable Law
Under the relevant provisions of section 156.101 of the family code, an order
providing the terms and conditions of conservatorship may be modified by the trial court
if modification would be in the best interest of the child and at least one of the two
criteria applicable in this case is met: (A) “the circumstances of the child, a conservator,
or other party affected by the order have materially and substantially changed” since
rendition of the order; or (B) “the child is at least 12 years of age and has expressed to
the court in chambers as provided by Section 153.009 the name of the person who is
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the child’s preference to have the exclusive right to designate the primary residence of
the child.” TEX. FAM. CODE ANN. § 156.101(1)(A)-(B) (West Supp. 2011).
3. Discussion
As the party seeking modification of the parent-child relationship, appellant had
the burden at trial to establish each of the foregoing criteria in her favor. See id. Implicit
in the trial court’s denial of appellant’s request for modification is a finding that appellant
failed to establish one or more of the criteria. See Burns, 116 S.W.3d at 920.
With regard to J.B., who is under the age of 12, we believe the trial court was
within its discretion to deny appellant’s request for modification because appellant did
not establish that there had been a material and substantial change in circumstances
since the 2009 order granting appellee the exclusive right to determine residence. See
TEX. FAM. CODE ANN. § 156.101(1)(A).
To prove a material and substantial change of circumstances has occurred, a
movant must show the conditions as they existed at the time of entry of the prior order.
In re C.C.J., 244 S.W.3d at 917 (citing In re T.W.E., 217 S.W.3d 557, 559 (Tex. App.—
San Antonio 2006, no pet.)). Once such conditions have been established, the movant
must show what material changes have occurred in the intervening period. Id. A trial
court’s determination of changed circumstances is not guided by rigid rules, but is fact-
specific. Id. (citing In re Z.B.P., 109 S.W.3d 772, 779 (Tex. App.—Fort Worth 2003, no
pet.)).
In this case, the prior order that appellant sought to modify was entered by
agreement of the parties in March 2009. Other than testimony establishing that the
order was entered by agreement, there is no evidence in the record regarding the
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conditions as they existed in 2009. In the absence of such evidence, the trial court had
no basis to find that a material and substantial change had occurred. Accordingly, it
was not an abuse of discretion for the trial court to deny appellant’s request for
modification as it related to J.B.
With regard to C.B., who is over the age of 12, we believe that the trial court was
within its discretion to deny appellant’s request for modification on the basis that it was
not in the best interest of the child. See TEX. FAM. CODE ANN. § 156.101(1).
The trial court is given wide latitude in determining the best interest of a minor
child. Gillespie, 644 S.W.2d at 451 (citing Leithold v. Plass, 413 S.W.2d 698 (Tex.
1967)). Furthermore, the trial court, as the fact finder, is the sole judge of the credibility
of the witnesses and the weight to be given their testimony. See City of Keller v.
Wilson, 168 S.W.3d 802, 819 (Tex. 2005). When a trial court is presented with
conflicting evidence, it may believe one witness and disbelieve others as well as resolve
inconsistencies in testimony. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex.
1986); Viera v. Viera, 331 S.W.3d 195, 210 (Tex. App.—El Paso 2011, no pet.).
“The trial court is in the best position to observe the demeanor and personalities
of the witnesses and can feel the forces, powers, and influences that cannot be
discerned by merely reading the record.” In re A.D.H., 979 S.W.2d 445 (Tex. App.—
Beaumont 1998, no pet.). Witness credibility issues “that depend on appearance and
demeanor cannot be weighed by the appellate court.” In re J.P.B., 180 S.W.3d 570,
573 (Tex. 2005) (per curiam). Even when credibility issues are reflected in the
transcript, the appellate court must defer to the fact-finder’s determinations, at least so
long as those determinations are not themselves unreasonable. Id.
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In this case, the trial court was presented with evidence from appellant and
appellee concerning the sexual abuse of C.B. by Lonnie Taylor, appellant’s former
boyfriend. It was undisputed that C.B.’s outcry of sexual abuse in 2006 is what
necessitated her relocation back to appellee’s home in 2007. It was also undisputed
that Taylor pled guilty to one or more charges as part of a plea-bargain arrangement.
The trial court heard evidence about the different manner in which appellee and
appellant responded to C.B.’s outcry of sexual abuse. Appellee testified that he sought
custody of C.B. and then placed her in counseling and that he believed C.B. was
sexually abused. He worked with law enforcement in Albuquerque, New Mexico to
ensure Taylor was prosecuted.
Appellant gave the following testimony:
Counsel: Well, now do you believe that your boyfriend Lonnie Taylor
sexually abused [C.B.]?
Appellant: I believe what my daughter tells me, yes, ma’am.
Counsel: Do you believe that Lonnie Taylor sexually abused your
daughter?
Appellant: Yes, ma’am.
Counsel: Did you tell the investigator in New Mexico that you didn’t
really believe that had happened?
Appellant: No. I did not say that I didn’t believe that it never happened.
Counsel: What did you tell the investigator?
Appellant: I told her that [C.B.] came to me and told me that it didn’t
happen . . . . [C.B.] told me that [appellee] had her lie about
what Lonnie did to her . . . . [C.B.] came and told me that
[appellee] had her making these allegations towards Lonnie
Taylor and that when she would say it wasn’t true he would
slap her or hit her or tell her he was going to have her put in
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jail because she shouldn’t be making those remarks that
they weren’t true.
I did believe her when she came to me the first time when
we went to court for it, which was in January 2007 when
[C.B.] stayed here to live with her father. And when we put
everything together after [C.B.] came to me telling me that it
wasn’t true, I have my doubts but only because she came to
me telling me that [appellee] has her lying about it.
Appellant’s aunt from New Mexico also testified on the subject of C.B.’s outcry
and appellant’s response to it:
Counsel: Mr. Lonnie Taylor was found guilty of abusing [C.B.];
correct?
Witness: That was a plea bargain.
Counsel: Right.
Witness: The man had no choice.
Counsel: He could have gone to trial; couldn’t he, Mrs. Garza?
Witness: Could he have gone to trial?
Counsel: He could have gone to trial, couldn’t he?
Witness: I wish he would have.
Counsel: A criminal can always go to - -
Witness: I wish he would have, ma’am, so the truth would have been
told.
Counsel: Okay. Because you and [appellant] - -
Witness: Uh-huh
Counsel: Don’t believe that Lonnie Taylor hurt [C.B.], do you?
Witness: No, ma’am. We don’t, and [appellee] knows that.
...
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Counsel: All of your family . . . doesn’t believe that Lonnie Taylor hurt
her, isn’t that true?
Witness: That’s true.
Counsel: [A]nd you don’t believe that Lonnie Taylor hurt [C.B.], do
you?
Witness: No, ma’am. I don’t.
Counsel: All right. And [appellant] doesn’t believe that Lonnie Taylor
hurt [C.B.], does she?
Witness: No, ma’am.
Counsel: Well, I guess I’m confused. I’m trying to figure out why you
would believe that he didn’t abuse your niece if she said that
he did.
Witness: [C.B.] never told me he did. She never told [appellant].
[Appellee] and [his] so-called wife was – were the ones that,
you know, were told. And I just don’t understand how that
was because [C.B.] was always open with her mom. So that
was kind of like, you know, why wouldn’t [C.B.] tell her mom.
Counsel: But after she said these things y’all still didn’t believe her?
Witness: No, ma’am. No.
...
Counsel: Okay. If something else happened to [C.B.] and she came
forward and said somebody had hurt her, do you think you’d
have trouble believing her?
Witness: No, ma’am.
Counsel: You don’t believe her about Lonnie Taylor but you would
believe her if she came forward with something else?
Witness: Well, I mean, if it was true, yes, I would believe her.
Counsel: How would you know whether it’s true, Mrs. Garza?
Witness: How do you know it’s true?
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Counsel: How do you know it’s true?
Witness: I don’t know. About Lonnie I don’t know if it’s true. Is it – I
don’t think it’s true. I know it’s not true because he never got
the opportunity to be alone with those girls. Never. Those
girls stayed with us until [appellant] got home or [appellant’s]
friend went and took them, which was a lady friend.
Counsel: Okay.
Witness: Lonnie never had a chance to keep those girls. Lonnie was
never around that much. . . . He was never home.
The trial court also heard testimony from Chambliss, C.B.’s counselor:
Counsel: So in relation to . . . [C.B.] and the sexual abuse, has she
ever told you anything happened to her sexual abuse wise?
Witness: No.
Counsel: Has she ever denied that anything happened to her sexual
abuse wise?
Witness: No. She just says she doesn’t really remember it.
Counsel: Okay. And what kind of – what kind of risk is there for
children who make an outcry of sexual abuse if their parents
don’t believe that that happened to them?
Witness: Well, obviously they get – continue to be a victim, you know,
because if the parent doesn’t believe them they feel bad
about themselves. Other people can abuse them and they
think it’s okay. You know, there’s a lot of things that could
happen to her.
Counsel: Have –
Witness: In other words, she’s not protected.
Counsel: All right. Do you have any question that [appellee] will
protect [C.B.] in his home?
Witness: No.
Counsel: Do you know whether [appellant] would protect [C.B.]?
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Witness: I don’t know that.
Chambliss also testified that, in her opinion, it was in C.B.’s best interest to remain in
appellee’s home.
On this record, we believe the trial court implicitly found that it was not in C.B.’s
best interest to relocate to New Mexico to live with appellant. See Burns, 116 S.W.3d at
920. As noted above, an abuse of discretion does not occur when the trial court bases
its decisions on conflicting evidence. Valdez v. Valdez, 930 S.W.2d 725, 731 (Tex.
App.—Houston [1st Dist.] 1996, no writ). Furthermore, an abuse of discretion does not
occur as long as some evidence of a substantive and probative character exists to
support the trial court's decision. Id.
In this case, the trial court had evidence of a substantive and probative character
to demonstrate that it was in C.B.’s best interest to remain in appellee’s custody
because appellee believed her outcry of sexual abuse, provided her with the
appropriate care by licensed counselors, cooperated with law enforcement to ensure
the perpetrator was brought to justice, and maintained a safe and healthy home for C.B.
that was free of sexual abuse. We note that the trial court has broad discretion in
considering testimony and evidence, with regard to what conditions are detrimental or
advantageous to children for the purpose of deciding custody issues. Niskar v. Niskar,
136 S.W.3d 749, 753 (Tex. App.—Dallas 2004, no pet.). Moreover, the mere fact that a
trial judge may decide a matter within his discretionary authority in a different manner
than an appellate justice in a similar circumstance does not demonstrate that an abuse
of discretion occurred. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242
(Tex. 1985).
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Appellant’s first issue is overruled.
B. Issue Two
In her second issue, appellant complains that the trial court erred by refusing to
interview C.B. in chambers because she is a child over 12 years of age.
1. Applicable Law
Texas Family Code section 153.009(a) provides the following:
In a nonjury trial or at a hearing, on the application of a party, the amicus
attorney, or the attorney ad litem for the child, the court shall interview in
chambers a child 12 years of age or older and may interview in chambers
a child under 12 years of age to determine the child’s wishes as to
conservatorship or as to the person who shall have the exclusive right to
determine the child’s primary residence. The court may also interview a
child in chambers on the court’s own motion for a purpose specified by
this subsection.
TEX. FAM. CODE ANN. § 153.009(a) (West 2008).
2. Discussion
At the close of evidence, appellant made two requests that the trial court
interview C.B. in chambers. The requests were denied. In denying appellant’s first
request, the trial court stated, “I do not feel that that will help me and so I’m going to
deny that request.” In denying appellant’s second request, the trial court stated, “I have
told you before that based on what I’ve heard so far I do not think that it’s going to assist
me in making this decision and that’s the reason I’ve made the decision I’ve made.”
Appellant contends that the trial court had no discretion to deny the requests
because the term “shall” used in section 153.009(a) is mandatory, not discretionary.
We agree. Appellant’s argument is consistent with section 311.016 of the Code
Construction Act, which states in relevant part, “‘[s]hall’ imposes a duty.” TEX. GOV’T
CODE ANN. § 311.016(2) (West 2005). Moreover, we agree with appellant that section
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153.009(a) confers discretion on the trial court only with regard to children under the
age of 12 and does not distinguish between written and oral applications, as the
Beaumont Court of Appeals recently suggested. See In re S.L.L., No. 09-09-00429-CV,
2011 Tex. App. LEXIS 2367, at *14 (Tex. App.—Beaumont Mar. 31, 2011, pet. denied)
(mem. op.) (“In this case, there is no application for an interview contained in the clerk’s
record; the trial court had the discretion to deny the verbal request.”).
Nevertheless, we note that subsection (c) provides that “[i]nterviewing a child
does not diminish the discretion of the court in determining the best interests of the
child.” TEX. FAM. CODE ANN. § 153.009(c). In this case, the trial court’s statements “I do
not feel that [an interview] will help me” and “based on what I’ve heard so far I do not
think that [an interview is] going to assist me in making this decision” indicate that the
trial court had reached a decision with regard to the child’s best interest and that the
court’s decision would not be altered by the child’s stated preferences. In this regard,
the trial court’s refusal to interview the child in chambers appears to have been a
decision calculated to avoid the child’s unnecessary involvement in the proceeding.
Several witnesses gave testimony regarding the children’s preferences.
Chambliss, C.B.’s counselor, who began seeing C.B. in September 2010, testified that
C.B. has never said anything to her to indicate that she wants to change where she
lives. Stanfield, J.B.’s counselor, who began seeing J.B. in January 2011, testified that
J.B. has been “wishy washy” about where she wants to live and does not seem to feel
strongly about it. She appears to be torn between the two homes, according to
Stanfield, who also told the court that J.B. seems to be happy living with appellee.
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Appellant testified that, since March 2010, both C.B. and J.B. have told her that
they did not want to live with appellee. In relevant part, appellant testified as follows:
It was the day before they were supposed to fly back to their dad that
[C.B.] and [J.B.] asked me to go sit down with them in the living room and
started crying. And I’m not talking about just a little bit of tears. They
were bawling.
[C.B.] told me that her dad had her lie about what Lonnie had did [sic] to
her. [J.B.] told me she didn’t want to go back because they were mean to
her, and [C.B.] also had told me that her dad calls her fat and ugly and
that she gets it from me. And that . . . when [C.B.] tells her dad that she
wants to live with me, he slaps her. He tells her he’s going to have her put
in jail and just other simple things like that.
And as for [J.B.], she just told me that they’re mean to her and that’s all
she could tell me.
Maria Rodriguez, appellant’s cousin, testified about her recent experience with
the girls and how they have expressed their desire to be with their mother: “[T]hey do
seem to hang on her more. When I was with them this past weekend they were just all
over her like they were grasping for everything they can get while she’s – while they
have her. And I think that affects them.”
The trial court also heard testimony from Leticia Garza, appellant’s aunt, who
lives in New Mexico and was present when the girls started crying and told their mother
they did not want to return to Texas to live with appellee. Garza also testified that prior
to the trial, C.B. told her, “I’ll be so glad to go home,” referring to her mother’s home in
New Mexico.
In light of the foregoing evidence concerning the preferences of the children and
in light of the trial court’s statements that an interview in chambers would not assist the
court in making the decision based on what it had already heard, we conclude that the
trial court’s refusal to interview C.B. was consistent with the discretion recognized in
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subsection (c) of family code section 153.009. Although the trial court violated the
mandatory language in subsection (a) by refusing to interview C.B., we conclude based
on the foregoing that the error was harmless and did not amount to reversible error.
See TEX. R. APP. P. 44.1(a). Appellant’s second issue is overruled.
C. Issue Three
In her third issue, appellant complains the trial court erred in allowing the
testimony of an improper, untimely-designated expert.
1. Applicable Law and Standard of Review
Under Rule 193.6, discovery that is not timely disclosed and witnesses that are
not timely identified are inadmissible as evidence. TEX. R. CIV. P. 193.6(a). A party who
fails to timely designate an expert has the burden of establishing good cause or a lack
of unfair surprise or prejudice before the trial court may admit the evidence. TEX. R. CIV.
P. 193.6(b). We review a trial court’s ruling to admit or exclude the testimony of an
untimely-designated expert for abuse of discretion. See Fort Brown Villas III Condo.
Ass'n v. Gillenwater, 285 S.W.3d 879, 881 (Tex. 2009).
2. Discussion
At trial, appellant objected to the testimony of Kim Stanfield, J.B.’s counselor, on
the basis that she was untimely designated:
And, Your Honor, I know earlier off the record [counsel for appellee] had
mentioned that Kim Stanfield had started seeing [J.B.], the younger child
in February of this year and that’s the reason she could not – or January,
I’m sorry, and that’s the reason she could not supplement the discovery to
me prior to January 6.
But you ordered her to give me some notes and I did get those, Your
Honor. And I don’t know if [counsel for appellee] is just [sic] didn’t
remember correctly or what the assertion to the Court was, but the notes
actually indicate that the little girl was seeing the counselor back in 2010
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prior to the discovery ever being due. And so I would renew my objection
to an improperly designated expert.
The trial court overruled appellant’s objection, stating, “Well, I’m going to . . . hear the
witness because I think it’s essential that I do so.”
On appeal, appellant argues that there is no testimony or evidence in the record
that either (1) there was good cause for the failure to timely designate, or (2) that the
failure to designate the expert would neither unfairly surprise nor unfairly prejudice
appellant’s case. See TEX. R. CIV. P. 193.6(a). According to appellant, appellee was
given more than adequate time to respond to the requests, which were propounded on
September 10, 2010.
Counsel for appellee told the trial court that Stanfield did not begin to see J.B.
until January 2011. Furthermore, Stanfield testified that her “first visit with [J.B.] was
January 4, 2011” and that the note referred to by appellant that “says January 4, 2010”
was a mistake. Although appellant continues to assert that appellee had four months to
answer the requests propounded on September 10, 2010, the trial court heard
uncontroverted evidence to the contrary. Therefore, we conclude that appellant has not
demonstrated an untimely designation by appellee or an abuse of discretion by the trial
court. Accordingly, we overrule appellant’s third issue.
D. Issue Four
In her fourth issue, appellant complains the trial court erred in excluding proper
rebuttal evidence.
1. Standard of Review
We review a trial court’s decision to admit or exclude evidence under an abuse of
discretion standard. Interstate Northborough P'ship v. State, 66 S.W.3d 213, 220 (Tex.
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2001); City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995). The trial
court’s evidentiary ruling will be upheld if there is any legitimate basis for the ruling.
Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). Under an
abuse of discretion standard, we are not free to substitute our judgment for the trial
court's judgment. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). Instead,
a trial court abuses its discretion only if it acts in an arbitrary or unreasonable manner
without reference to any guiding rules or principles. Downer, 701 S.W.2d at 241-42.
2. Discussion
At trial, appellee testified that appellant “gets to talk to [C.B. and J.B.] at least two
possibly three times a week.” Appellee also testified that he has never done anything to
limit the number of times appellant speaks to the children during the week. Appellant
sought to cross-examine appellee regarding a purported inconsistency with his
testimony, as evidenced by an email in which appellee told appellant: “I am in
compliance with what the court order states concerning the phone calls to the girls, just
as long as you speak to them once a week.” Counsel for appellee objected to the
admission of the email on the basis that it was not produced in discovery, and the trial
court sustained the objection.
On appeal, appellant contends that the trial court committed reversible error by
excluding the email from evidence. A successful challenge to evidentiary rulings usually
requires the complaining party to show that the judgment turns on the particular
evidence excluded or admitted. See Alvarado, 897 S.W.2d at 753-54. In determining if
the excluded evidence probably resulted in the rendition of an improper judgment, a
court must review the entire record. McCraw v. Maris, 828 S.W.2d 756, 758 (Tex.
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1992); Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989). A court
ordinarily will not reverse a judgment for erroneous rulings on admissibility of evidence
when the evidence in question is cumulative and not controlling on a material issue
dispositive to the case. Gee, 765 S.W.2d at 396. To obtain a reversal of a judgment
based on error in the exclusion of evidence, an appellant must show that the trial court’s
ruling was in error and that the error was calculated to cause and probably did cause
the rendition of an improper judgment. TEX. R. APP. P. 44.1; Alvarado, 897 S.W.2d at
753; McCraw, 828 S.W.2d at 757.
We have reviewed the entire record and conclude that appellant has not
demonstrated that the trial court committed reversible error by excluding the
complained-of email. As appellant notes in her brief, Texas law does not restrict a party
to any one particular form of attacking the credibility of a witness. See TEX. R. EVID.
607, 611(b). Texas Rule of Evidence 613(a) allows for the examination of a witness
concerning a prior inconsistent statement. See TEX. R. EVID. 613(a). Although the trial
court excluded the email from evidence, the error, if any, did not restrict appellant from
cross-examining and impeaching appellee with the inconsistent statement he made in
the email. Nor did the trial court prohibit appellant from offering her own testimony
about the frequency of her telephone calls to the children and the limits or restrictions
appellee placed on those communications. Accordingly, appellant cannot establish that
the error, if any, was calculated to cause and probably did cause the rendition of an
improper judgment. See TEX. R. APP. P. 44.1.
Appellant’s fourth issue is overruled.
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III. CONCLUSION
The judgment of the trial court is affirmed.
___________________
ROGELIO VALDEZ
Chief Justice
Delivered and filed the
2nd day of August, 2012.
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