In the interest of T.B., a child--Appeal from 318th District Court of Midland County

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State: Texas

Court: Texas Northern District Court

Docket No: 11-11-00034-CV

Case Date: 08/31/2011

Plaintiff: Joe Allen Lewis

Defendant: The State of Texas--Appeal from 258th District Court of Polk County

Preview:Opinion filed August 31, 2011

In The

Eleventh Court of Appeals
__________

No. 11-11-00034-CV __________ IN THE INTEREST OF T.B., A CHILD
On Appeal from the 318th District Court Midland County, Texas Trial Court Cause No. FM 50,489

MEMORANDUM OPINION The trial court entered an order terminating the parental rights of T.B.'s mother and father. The father (appellant) has filed a notice of appeal from the termination order. T.B.'s mother has not filed an appeal. We affirm. Issues Appellant presents seven issues for review. In the first issue, appellant contends that the trial court abused its discretion by modifying the pretrial scheduling order and allowing documentary evidence of appellant's criminal history to be admitted into evidence. In his second and third issues, appellant challenges the legal and factual sufficiency of the evidence supporting the finding that he engaged in conduct or knowingly placed T.B. with persons who engaged in conduct that endangered T.B.'s physical or emotional well-being. In the fourth and fifth issues, appellant challenges the legal and factual sufficiency of the evidence supporting the finding that appellant engaged in criminal conduct that resulted in his conviction of an offense and

confinement for not less than two years from the date of the filing of the amended petition. In the sixth and seventh issues, appellant asserts that the evidence is legally and factually insufficient to support the finding that termination is in the best interest of T.B. Admission of Criminal History Appellant complains in his first issue of the admission into evidence of State's Exhibit No. 2, a certified copy of the judgment from the U.S. District Court, Western District of Texas, showing that appellant had been convicted on April 28, 2009, of the offense of possession with intent to distribute cocaine base and had been sentenced to serve a term of seventy months in prison. Appellant objected to the exhibit because the Department of Family and Protective Services did not list that document in its exhibit list as required by the trial court's pretrial scheduling order, because the document was not provided in discovery, and because it constituted an unfair surprise to appellant. The Department conceded that it had not provided a copy to appellant and that it had omitted the document from its exhibit list, but the Department asserted that the document created no undue surprise and was a certified copy of a public document available at the clerk's office. The trial court overruled appellant's objections and offered appellant's attorney time to review the document and to look up any further information that he might need. Appellant's attorney declined the offer, stating that he did not need any additional time. Whether to admit or exclude evidence is a matter committed to the trial court's sound discretion. Interstate Northborough P'ship v. State, 66 S.W.3d 213, 220 (Tex. 2001). We review the trial court's admission or exclusion of evidence under an abuse of discretion standard. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). TEX. R. CIV. P. 166 authorizes a trial court to modify a ruling regarding a pretrial conference, and TEX. R. CIV. P. 193.6 permits a trial court to admit evidence not provided during discovery if the offering party shows either (1) good cause for its discovery failure or (2) the lack of unfair prejudice or unfair surprise to the opposing party. The trial court has discretion to determine whether the offering party met its burden. Bellino v. Comm'n for Lawyer Discipline, 124 S.W.3d 380, 383-84 (Tex. App.--Dallas 2003, pet. denied). In the absence of such a showing, the trial

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court may grant a continuance or temporary postponement based upon the new information. Rule 193.6(c). Since one of the grounds upon which the Department specifically sought termination was appellant's conviction, the trial court could have determined that the introduction into evidence of the judgment from that conviction would not unfairly surprise appellant. In addition to the documentary evidence, appellant and another witness testified regarding appellant's conviction. Also, appellant declined the trial court's offer to postpone the proceeding to allow him time to prepare for the admission of the judgment. We cannot hold that the trial court abused its discretion in admitting into evidence a certified copy of appellant's judgment of conviction. Appellant's first issue is overruled. Legal and Factual Sufficiency In his remaining issues, appellant challenges the legal and factual sufficiency of the evidence to support termination. Termination of parental rights must be supported by clear and convincing evidence. TEX. FAM. CODE ANN.

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