Joseph Calvin Bean v. The State of Texas--Appeal from 252nd District Court of Jefferson County

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Laws-info.com » Cases » Texas » 9th District Court of Appeals » 2003 » Joseph Calvin Bean v. The State of Texas--Appeal from 252nd District Court of Jefferson County

State: Texas

Court: Texas Northern District Court

Docket No: 09-03-00202-CR

Case Date: 06/12/2003

Plaintiff: Jimmy D. Smith

Defendant: The State of Texas--Appeal from 114th District Court of Smith County

Preview:In the Interest of D.L.N., a Child--Appeal from 19th
District Court of McLennan County
In the Interest of D.L.N., a Child /**/
IN THE
TENTH COURT OF APPEALS
No. 10-97-178-CV
IN THE INTEREST OF D.L.N.,
A CHILD
From the 19th District Court
McLennan County, Texas
Trial Court # 95-618-1
CONCURRING OPINION
We acknowledge that a determination of an involuntary termination of parental rights must be strictly scrutinized. We
also acknowledge that, because a termination involves rights of constitutional dimension, our statutes require,
consistent with due process, that the grounds for termination must be proved by clear and convincing evidence. See
Tex. Fam. Code Ann. 161.001, 161.206(a) (Vernon 1996 & Supp. 1998); Santosky v. Kramer, 455 U.S. 745, 769, 102
S.Ct. 1388, 1403, 71 L.Ed.2d 599 (1982) (citing Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323
(1979)). We still, however, review those findings in the same way as findings made by a preponderance of the
evidence.
I continue to believe that other courts of appeal are on the right course when they say that a higher burden of proof,
i.e., clear and convincing evidence, for determination of fact issues at trial calls for a different standard for factual-
sufficiency review on appeal. See, e.g., Edwards v. Texas Dep t of Protective and Regulatory Services, 946 S.W.2d
130, 135-37 (Tex. App. El Paso 1997, no writ) (holding that the appellate court should review whether the evidence
was sufficient to produce in the mind of the factfinder a firm belief or conviction as to the truth of the allegations
sought to be established ); In re H.C., 942 S.W.2d 661, 663-64 (Tex. App. San Antonio 1997, no writ); Slatton v.
Brazoria County Protective Services Unit, 804 S.W.2d 550, 556 (Tex. App. Texarkana 1991, no writ); Williams v.
Texas Dep t of Human Services, 788 S.W.2d 922, 926 (Tex. App. Houston [1st Dist.] 1990, no writ); Interest of
L.R.M. and J.J.M., 763 S.W.2d 64, 66 (Tex. App. Fort Worth 1989, no writ);Wetzel v. Wetzel, 715 S.W.2d 387, 389
(Tex. App. Dallas 1986, no writ); Neiswander v. Bailey, 645 S.W.2d 835, 835-36 (Tex. App. Dallas 1982, no writ); see
also Bill Vance, The Clear and Convincing Evidence Standard in Texas: A Critique, 48 Baylor L. Rev. 391, 415
(1996).
Our constitution and statutes provide for one level of appeal as a matter of right in termination cases and a factual-
sufficiency-of-the-evidence review of determinations made by the factfinder. Thus, one could argue that when
constitutional rights are affected by fact determinations made under a higher burden of proof at trial, the affected party
has a constitutionally-protected interest in those determinations being reviewed in a way that insures that the due-
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process standard was met at trial. See M.L.B. v. S.L.J., ___ U.S. ___, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996) (equal
protection requires state to provide transcript in appeal of right to indigent parent whose parental interest was
terminated) (decisions concerning access reflect both equal protection and due process concerns). That is to say, the
rationale of Addington, Santosky, and the "Griffin-line cases" described in M.L.B. dictates that a different (higher)
standard of review be applied on appeal to fact determinations made at trial under the clear-and-convincing-evidence
standard required by due process. I do not believe that the current standard of review provides that kind of protection.
Finally, saying that the Court of Criminal Appeals' adoption of the traditional factual sufficiency review standard
bolsters the case for maintaining the current standard in civil cases also fails to persuade me. See Clewis v. State, 922
S.W.2d 126, 129 (Tex. Crim. App. 1996). I believe that the Clewis standard wrongly requires a court of appeals to find
that the evidence favors an acquittal before reversing for factual insufficiency, ignoring the possibility that the evidence
could preponderate in favor of a conviction and still fall short of proof beyond a reasonable doubt. See Mata v. State,
939 S.W.2d 719, 728 (Tex. App. Waco 1997, no pet.) (Vance, J., concurring).
With these comments, I concur in the judgment.
BILL VANCE
Justice
Opinion delivered and filed December 23, 1997
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