In the Interest of K.R.

MAJORITY OPINION ON REHEARING EN BANC

J. HARVEY HUDSON, Justice.

We withdraw the opinion of the panel delivered on August 31, 1999, and substitute the following en banc opinion.

Appellant asks us to decide whether the trial court erred in forcing him to trial before a jury while wearing handcuffs. Because we find the court’s use of visible restraints, under the facts presented here, deprived appellant of his fundamental due process right to a fair trial, we reverse the judgment of the trial court and remand the cause for a new trial.

Appellant, Edgar Hector Rodriguez, resided with and ultimately married Maria Theresa Velasquez. At the time of their marriage, she had a small son, Christopher. Shortly after their marriage, Velasquez gave birth to their daughter, K.R.. Appellant was convicted of reckless injury to a child after he struck and killed Christopher. The State of Texas, through its Department of Protective and Regulatory Services, then filed suit to terminate appellant’s parental rights as to K.R. In addition to challenging the trial court’s use of visible restraints, appellant also contends the evidence was legally and factually insufficient to support the jury’s finding that the termination was in the best interest of the child.

Sufficiency of the Evidence

The record reflects that Maria Velasquez gave birth to Christopher in 1992. Appellant and Valasquez were married in June of 1994. K.R. was born a few months later on August 12, 1994. In February of 1995, Velasquez left Christopher, then two years and ten months old, in appellant’s care for approximately 20 minutes. Christopher soiled himself. Appellant, in response, struck the child with what he called “an adult strike.” The blow lacerated the child’s small intestine, causing peritoneal hemorrhaging. Christopher died from his injuries. Appellant was subsequently convicted of reckless injury to a child and sentenced to serve ten years’ confinement in the penitentiary.

To terminate a natural parent’s parental rights, the court must be convinced by clear and convincing evidence that both (1) a statutory ground for termination exists and (2) termination is in the best interest of the child. See Tex. Fam.Code Ann. § 161.001 (Vernon 1996). Appellant’s conviction for reckless injury to a child satisfies the statutory ground for termination, and he does not challenge that requirement on appeal. See id. § 161.001(L) (the parent has been adjudicated criminally responsible for the death or serious injury of a child). He does, however, challenge the legal and factual sufficiency of the evidence to sustain the jury’s determination that termination was in the best interest of his daughter.

“Clear and Convincing” Evidence

The phrase “clear and convincing” has been used at various times (1) as a cautionary admonition to emphasize the seriousness of a cause of action, (2) to describe an intermediate burden of proof, and/or (3) to delineate a heightened standard of review. Because its meaning and significance vary with usage, the “clear and convincing” standard has been the source of confusion, and there is a split of authority regarding its effect upon our disposition.

Cautionary Admonition

To emphasize the gravity of some actions, courts have occasionally observed that the trier of fact must be convinced by “clear and satisfactory” or “clear and convincing” evidence. See Estate of Davis v. Cook, 9 S.W.3d 288, 293 (Tex.App.-San Antonio 1999, no pet.) (undue influence upon a testator must be shown by “satisfactory and convincing” evidence); Digby v. Texas Bank, 943 S.W.2d 914, 919 (Tex.App.-El Paso 1997, writ denied) (malicious prosecution must be proved by “clear, positive, and satisfactory” evidence); Matter of Marriage of Moore, 890 S.W.2d 821, 837 (Tex.App.-Amarillo 1994, no writ) (community property presumption must be rebutted by “clear and convincing” evidence); Gregorcyk v. Al Hogan Builder, Inc., 884 S.W.2d 523, 525 (Tex.App.-Corpus Christi 1994, writ denied) (an ultimate fact may be conclusively shown by wholly circumstantial evidence if such evidence is reasonably “satisfactory and convincing”); Gray v. Turner, 807 S.W.2d 818, 822-23 (Tex.App.Amarillo 1991, no writ) (judgment nunc pro tunc must be supported by “clear and convincing” evidence that the court’s original judgment was not accurately recorded); Pierce-Fordyce Oil Ass’n v. Staley, 190 S.W. 814, 815 (Tex.Civ.App.-Amarillo 1916, no writ) ( a court of equity should not set aside a judgment except upon “clear, satisfactory, and convincing” proof of lack of service of process).

When used in this manner, the phrase “clear and convincing evidence” is not a heightened burden of proof and does not represent a deviation from the “preponderance of evidence” standard, but is only an admonition to the trial judge to exercise great caution in weighing the evidence. See Ellis County State Bank v. Keever, 888 S.W.2d 790, 792-93 (Tex.1994). To say a judgment must be supported by “clear and convincing” evidence is “merely another method of stating that a cause of action must be supported by factually sufficient evidence.” See Meadows v. Green, 524 S.W.2d 509, 510 (Tex.1975).

Burden of Proof

Traditionally, there has been only one burden of proof or quantum of evidence necessary to determine fact questions in civil cases, i.e., preponderance of the evidence. See Ellis County State Bank, 888 S.W.2d at 792 (Tex.1994). In 1979, however, the United States Supreme Court commanded the Texas Supreme Court to impose an elevated burden of proof in civil commitment cases to meet due process demands. See Addington v. Texas, 441 U.S. 418, 432-33, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979). On remand, the Texas Supreme Court prescribed a heightened burden of proof for civil commitment actions. See State v. Addington, 588 S.W.2d 569, 570 (Tex.1979). The court described the new burden of proof as the “clear and convincing evidence” standard. Id. The following year, the Texas Supreme Court imposed this new burden of proof in cases involving the involuntary termination of parental rights. See In the Interest of G.M., 596 S.W.2d 846, 847 (Tex.1980).¹ Thus, at least in eases involving civil commitments or the involuntary termination of parental rights, the “clear and convincing evidence” standard is not just a cautionary admonition, but an intermediate burden of proof falling between the preponderance standard of ordinary civil proceedings and the reasonable doubt standard of criminal proceedings. Id.²

Standard of Review

When reviewing the sufficiency of evidence in cases where the plaintiff has an elevated burden of proof, the question arises whether the reviewing court should use a heightened standard of review.³ Historically, there have been only two standards by which evidence is to be reviewed — factual sufficiency and legal sufficiency. See Meadows, 524 S.W.2d at 510. However, Meadows was decided before the United States Supreme Court’s decision in Addington and, thus, before the “clear and convincing” standard was anything other than a cautionary instruction. Now that the “clear and convincing evidence” standard has become an intermediate burden of proof in certain cases, such as the involuntary termination of parental rights, the proper standard of review has been much debated.

Some courts have not deviated from the traditional standard when assessing the legal and/or factual sufficiency of “clear and convincing” evidence. See In re J.N.R., 982 S.W.2d 137, 142-43 (Tex.App.Houston [1st Dist.] 1998, no pet.) (holding the standard of review for either legal or factual sufficiency is not affected by the heightened burden of proof required in the trial court); In the Interest of B.S.T., 977 S.W.2d 481, 484 n. 4 (Tex.App.-Houston [14 tii Dist] 1998, no pet.) (holding that despite a higher burden of proof in the trial court, the standard of review for assessing factual sufficiency remains unchanged).

Other courts, however, have adopted a heightened standard for assessing legal and/or factual sufficiency. See Spangler v. Texas Dept, of Protective Seros., 962 S.W.2d 253, 257 (Tex.App.-Waco 1998, no pet.) (a factual insufficiency point will be sustained if the finding is so contrary to the weight of contradicting evidence that no trier of fact could reasonably find the evidence to be clear and convincing); Edwards v. Dept, of Protective Seros., 946 S.W.2d 130, 137 (Tex.App.-El Paso 1997, no writ) (holding that while the traditional standard of review remains the same when assessing legal sufficiency, the reviewing court must use a heightened standard for factual sufficiency and consider whether the evidence was sufficient to produce in the mind of the fact finder a firm belief or conviction as to the truth of the allegations sought to be established); Neiswander v. Bailey, 645 S.W.2d 835, 836 (Tex.App.-Dallas 1982, no writ) (holding that when assessing legal sufficiency, the standard is not whether the trier of fact could reasonably conclude that the existence of a fact is more probable than not, but whether the existence of the fact is highly probable).⁴

In light of the facts presented here, we find the evidence is legally and factually sufficient under either the traditional or heightened standards of review.

When assessing the best interest of a child, we are guided by several factors articulated by the Texas Supreme Court. These include (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist these individuals to promote the best interest of the child; (6) the plans for the child by these individuals or by the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex.1976).

The Texas Department of Protective and Regulatory Services offered considerable evidence that appellant would constitute a physical danger to K.R. now and in the future. The record before us shows appellant lost his temper and killed a small boy by punching him in the abdomen for soiling his pants. On another occasion, he became so violent with his wife that she was forced to seek refuge in a shelter for several days. Moreover, several therapists and doctors who evaluated K.R. testified she has severe emotional and behavioral problems which require special attention. Appellant’s ability to provide for his daughter’s physical and emotional needs now and in the future has been severely diminished by his incarceration in the penitentiary and his admitted use of illegal narcotics.

In his defense, appellant testified that what happened to Christopher was out of character for him and that he had never had problems before that incident. He further testified that he would agree to have any visits supervised and that he had family members who were interested in maintaining a relationship with K.R. Finally, he stated that while he was in prison he had completed vocational training and become involved in church activities.

In deciding whether the evidence is legally sufficient to support the conclusion that the best interest of the child warrants a termination of parental rights, we consider only the evidence and inferences tending to support the jury’s findings, and disregard all contrary evidence and inferences. See Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 458 (Tex.1992). After reviewing the evidence, we find that not only could the jury reasonably conclude that termination was probably in the best interest of K.R., we find the evidence sufficient to prove it is highly probable. Thus, the evidence, under either standard, is legally sufficient.

In reviewing a factual sufficiency challenge, we consider the evidence that both supports and is contrary to the jury’s finding. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). After reviewing the evidence, we find the jury’s decision is not so contrary to the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Neither do we find the decision so contrary to the weight of contradicting evidence that no trier of fact could reasonably find the evidence to be clear and convincing. Accordingly, the evidence, under either standard, is factually sufficient.

We overrule appellant’s challenges regarding the sufficiency of the evidence.

The Use of Physical Restraints

Prior to voir dire, the trial judge informed all counsel that he intended to leave the appellant handcuffed throughout the trial. Counsel for appellant immediately made a motion, joined by the attorney for the Texas Department of Protective and Regulatory Services, that his client be allowed to sit in the courtroom without handcuffs. Similarly, the attorney ad litem also expressed concern, recognizing the prejudice to appellant. However, despite the concerns of all counsel involved, the trial court refused to allow the handcuffs to be removed. After voir dire and opening statements by the attorneys, but before the introduction of evidence, the trial judge instructed the jury that they were not to infer anything from the fact that the appellant was handcuffed, other than that he had been convicted of a crime and was incarcerated. Appellant remained handcuffed throughout the remainder of the trial. After hearing the evidence, the jury found the parental rights of appellant should be terminated.

Appellant contends the trial court’s refusal to allow him to sit before the jury without physical restraints affected his constitutional rights and unduly prejudiced the jury. He argues that this error mandates reversal.

Due Process

While the right to due process of law has been more commonly cited in criminal cases, it has frequent application in civil litigation as well. The Fourteenth Amendment, for example, expressly guarantees that no State shall “deprive any person of life, liberty, or property, without due process of law.” U.S. Const, amend. XIV, § 1. (Emphasis added). This is not to suggest that children are chattel or that parental rights constitute a property interest. Rather, the United States Supreme Court has recognized that the right to conceive and raise children is one of the “essential” and “basic civil rights of man;” indeed, a right “more precious ... than property rights.” Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). Similarly, the Texas Supreme Court has stated that the natural right existing between parents and children is of constitutional dimension, and involuntary termination of those rights involves fundamental constitutional rights. See Holick v. Smith, 685 S.W.2d 18, 20 (Tex.1985). “In cases of this kind the question of the fairness of the hearing is always present and has been jealously guarded by the courts.” Pettit v. Engelking, 260 S.W.2d 613, 616 (Tex.Civ.App.-San Antonio 1953, writ refd n.r.e.). Thus, there can be little doubt that due process protections are applicable where parental rights-are involuntarily terminated.

Whether leaving a civil defendant shackled in the jury’s presence violates constitutional guarantees of due process is an issue of first impression in Texas. We find no Texas court that has addressed the issue as to when it is proper to restrain a party in a civil case. In the criminal context, the law regarding restraints is well settled. The United States Supreme Court has said that “even to contemplate such a technique, much less to see it, arouses a feeling that no person should be tried while shackled and gagged except as a last resort.” Illinois v. Allen, 397 U.S. 337, 344, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). This is because “the sight of shackles and gags might have a significant effect on the jury’s feelings about the defendant.” Id.

Similarly, in a long line of cases, the Court of Criminal Appeals has made it clear that, without sound justification, the law abhors allowing a defendant to be seen by the jury wearing handcuffs or shackles. See Long v. State, 823 S.W.2d 259, 282 (Tex.Crim.App.1991); Marquez v. State, 725 S.W.2d 217, 227-30 (Tex.Crim.App. 1987); Clark v. State, 717 S.W.2d 910, 918-19 (Tex.Crim.App.1986); Moore v. State, 535 S.W.2d 357, 358 (Tex.Crim.App.1976) (overruled on other grounds); Gray v. State, 99 Tex. Crim. 305, 268 S.W. 941 (1924). In Gray, the court stated:

We desire to make it perfectly plain that we regard a trial with the prisoner in irons as obnoxious to the spirit of our laws and all ideas of justice, and it is only when the record brings the case clearly within one of the rare exceptions that we would consent for a conviction to stand. Before a judge should permit a case to proceed under such circumstances he should be very sure of his ground.

268 S.W. at 950 (opinion on rehearing). A trial judge must have sufficient reasons to justify leaving a defendant in handcuffs before the jury, and the record must reflect those reasons with particularity. See Long, 823 S.W.2d at 282. In a criminal case, if the record does not affirmatively reflect sufficient reasons justifying the decision, the trial court has abused its discretion and reversible error results. Id.

The State, through its Department of Protective and Regulatory Services, contends the aforementioned criminal cases are not applicable here because in a criminal prosecution the defendant enjoys a constitutional presumption of innocence; whereas, in civil cases, the defendant enjoys no such presumption.

In a termination case, however, a parent has the benefit of a different, yet vitally important, presumption. Because it is presumed to be in the best interest of children that they should remain in the care of their parents, parents have always enjoyed a strong presumption they should retain custody of their natural children.⁵ See Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex.1976). The presumption is grounded, in part, on the fact that the natural right which exists between parents and their children is one of constitutional dimensions. Id. Thus, in the same way the sight of shackles erodes a criminal defendant’s constitutional presumption of innocence, the use of visible restraints can destroy the civil defendant’s constitutional presumption that he is a fit parent and that it is in the best interest of his natural children that he retain his parental rights.⁶

Accordingly, we find that when, as here, “an individual’s level of dangerousness is a question the jury must decide in a civil proceeding, it is a violation of the right to a fair trial to compel that individual to appear before the jury bound in physical restraints.” Duckett v. Godinez, 67 F.3d 734, 747 (9th Cir.1995). While a trial judge may, at times, use restraints to control an obstreperous litigant or guarantee courtroom security, the mere fact that a party to a civil suit is incarcerated is not a sufficient reason to shackle him during trial. See Lemons, 985 F.2d 354.

Here, the only justification offered by the trial judge for the use of physical restraints was that appellant had “been convicted of a crime ... [and] incarcerated.” The fact that a defendant is an inmate is not, in and of itself, a sufficient reason to shackle him in front of the jury. The record in this case contains no indication that appellant was disruptive, threatening, or violent in the courtroom; neither is there any evidence to suggest that appellant was likely to be disruptive, threatening, or violent. Thus, we find the trial court erred in leaving appellant shackled throughout the trial.

Harm

The momentary or inadvertent viewing by one or more jurors of a criminal defendant in handcuffs does not ordinarily constitute reversible error. See Clark v. State, 717 S.W.2d 910, 919 (Tex.Crim.App.1986); Silva v. State, 995 S.W.2d 872, 876 (Tex.App.-Waco 1999, no pet). Even the prolonged, deliberate shackling of a defendant during a criminal trial may, under some circumstances, be harmless. See Long v. State, 823 S.W.2d 259, 283 (Tex.Crim.App.1991) (holding that where trial judge arranged courtroom to prevent jury from seeing defendant’s shackles, the error was harmless).

We have no doubt here, however, that appellant was prejudiced by the fact he was physically and visibly restrained in the jury’s presence. Prior to entering the courtroom, appellant enjoyed a presumption that he was a fit parent; it was also presumed under the law of this state that it was in KR.’s best interest to remain in the custody of her natural father. When appellant entered the courtroom, these presumptions were instantly and effectively rebutted. The prejudice arose not from the fact the jury might infer from his restraints that he was an inmate of the state penitentiary, for this they would soon learn in any event. Rather, the injury stemmed from implications that jurors must have reasonably and inevitably drawn from his continued restraint. One of the central issues to be decided by the jury was whether appellant would present a danger to his daughter. Appellant’s continued restraint during the trial, had the effect of making appellant appear to be a menacing psychopath; even a pet dog looks vicious when muzzled.⁷

Nevertheless, our rules of appellate procedure provide that where the appellant has been permitted to properly present his case to the court of appeals, no judgment may be reversed unless the error complained of probably caused the rendition of an improper judgment. See Tex.R.App. P. 44.1(a). In other words, appellant must show that, but for the alleged error, the jury would have rendered a verdict favorable to him See Pitman v. Lightfoot, 937 S.W.2d 496, 537 (Tex.App.San Antonio 1996, writ denied). In light of the record before us, we find it exceedingly unlikely that the jury would have made a different finding if appellant had not been shackled. Thus, if we are to interpret Rule 44.1(a) to mean that “but for” the court’s error, the jury would have made a different finding, we would have to conclude that the error was harmless.

However, the right to a fair trial is no less fundamental in civil cases than it is in criminal cases. See In re International Business Machines Corp., 618 F.2d 923, 932 n. 11 (2d Cir.1980); Bailey v. Systems Innovation, Inc., 852 F.2d 93, 98 (3rd Cir.1988); Chicago Council of Lawyers v. Bauer, 522 F.2d 242, 248 (7th Cir.1975), cert. denied, 427 U.S. 912, 96 S.Ct. 3201, 49 L.Ed.2d 1204 (1976). Fundamental rights are those that have been guaranteed by the Bill of Rights of the United States Constitution, are traceable in some way to the state or federal constitutions, or are preservative of basic political and civil rights. See In re Estate of Touring, 775 S.W.2d 39, 42 (Tex.App.Houston [14 th Dist.] 1989, no writ); see also Spring Branch I.S.D. v. Stamos, 695 S.W.2d 556, 560 (Tex.1985). Thus, where constitutional or fundamental protections are offended, the Rules of Appellate Procedure must occasionally yield.⁸

While not rising to the level of a liberty interest, parental rights are nevertheless more precious than property rights. Thus, it was imperative that the defendant be afforded a fair trial. We find that where, as here, (1) one of the primary issues to be determined is the defendant’s propensity for violence, (2) the court orders that the defendant be shackled for the duration of the trial, (3) the restraints are visible to the jury, and (4) there is no apparent justification for the restraints appearing in the record — then the defendant has been denied a fair trial. This is not to say that the mere sight of a defendant in handcuffs constitutes “structural error” or that the error is never susceptible to a harm analysis. However, under the facts presented here, a strict application of Rule 44.1(a) would effectively deny appellant’s right to substantive due process of law.⁹

Appellant should have entered the courtroom clothed with the presumption that he was a fit parent. Instead, he entered the courtroom in handcuffs. The jury could only conclude that the court believed the defendant to be a particularly dangerous and violent person. See Duckett, 67 F.3d at 747. While it is highly unlikely that any rational jury could conclude from the evidence that appellant is a fit parent, justice encompasses more than a final disposition. For justice to prevail, it must be achieved justly; this is the essence of due process of law.

Accordingly, we reverse the judgment of the trial court and remand this cause for a new trial.

1 . In 1995, the Legislature imposed the "clear and convincing evidence" standard in such cases when it amended the Family Code. See Act of May 24, 1995, 74th Leg., R.S., ch. 709, § 1, 1995 Tex. Gen. Laws 3745.

2 . When used to define a burden of proof, "clear and convincing” means "that measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” Transportation Ins. Co. v. Model, 879 S.W.2d 10, 31 (Tex. 1994).

3 .Hon. Bill Vance, The Clear and Convincing Evidence Standard in Texas: 4 Critique, 48 Baylor L.Rev. 391 (1996). 4.For a more complete listing of the decisions on both sides of this issue, see In the Interest of D.L.N., 958 S.W.2d 934, 940 (Tex.App.Waco 1997, pet. denied); Edwards, 946 S.W.2d at 135-37.

5 . The presumption that the best interest of a child is served by awarding custody to a natural parent is "deeply embedded” in Texas law. Lewelling v. Lewelling, 796 S.W.2d 164, 166 (Tex.1990).

6 . A number of federal courts have discussed the use of restraints in civil suits. See, e.g., Davidson v. Riley, 44 F.3d 1118 (2d Cir.1995); Lemons v. Skidmore, 985 F.2d 354 (7th Cir. 1993); Holloway v. Alexander, 957 F.2d 529 (8th Cir.1992); Tyars v. Finner, 709 F.2d 1274 (9th Cir.1983). See also Woods v. Thieret, 5 F.3d 244, 246-47 (7th Cir. 1993) (plaintiffs inmate witnesses required to appear in shackles and handcuffs). Unanimously, these courts have held that the same concern expressed in criminal cases, the right to a fair trial, is applicable to parties in civil suits. Accordingly, they have recognized that the trial court must exercise its discretion with great caution, being sure to use restraints only when expressly found to be necessary, and even then, using no greater restraint than required. See Davidson, 44 F.3d at 1126.

7 . The specter of a manacled defendant, continuously restrained throughout the trial, portends that this is one who, like the fictional Hannibal Lecter, presents an unremitting danger to all those passing within his grasp. See People v. Moss, 215 A.D.2d 594, 626 N.Y.S.2d 853, 854 (1995) (where defendant was denied a fair trial when prosecutor suggested he was comparable to Hannibal Lec-ter).

8 . If the violation of such a party's rights renders the trial "fundamentally unfair," the error will mandate a new trial even without a showing of harm. See Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). For example, the denial of a jury trial constitutes reversible error without a showing of harm. See Texas & P. Ry. Co. v. Van Zandt, 159 Tex. 178, 317 S.W.2d 528, 531 (1958); Meyer v. Henery, 400 S.W.2d 933 (Tex.Civ.App.-Austin 1966, no writ). Similarly, the improper denial of a Batson challenge also constitutes reversible error regardless of whether it probably caused the rendition of an improper judgment. See United States v. McFerron, 163 F.3d 952, 955-56 (6 th Cir.1998); United States v. Hall, 152 F.3d 381, 408 (5 th Cir. 1998); Tankleff v. Senkowski, 135 F.3d 235, 248 (2 Cir. 1997).

9 . “Fair play” is "the essence of due process.” See Galvan v. Press, 347 U.S. 522, 530, 74 S.Ct. 737, 98 L.Ed. 911 (1954).

4 . See Tex.R. Civ. P. 277; Briseno v. Martin, 561 S.W.2d 794, 796 (Tex.1977).