Oscar Alcala v. The State of Texas--Appeal from County Court at Law No. 2 of Hays County

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Laws-info.com » Cases » Texas » 3rd District Court of Appeals » 1993 » Oscar Alcala v. The State of Texas--Appeal from County Court at Law No. 2 of Hays County

State: Texas

Court: Texas Northern District Court

Docket No: 03-93-00485-CR

Case Date: 12/22/1993

Plaintiff: Kalvin Dewayne Harris

Defendant: The State of Texas--Appeal from 241st District Court of Smith County

Preview:Thomas Edward Spangler v. Texas Department of
Protective and Regulatory Services--Appeal from 19th
District Court of McLennan County
MAJORITY | MAJORITY
Thomas Edward Spangler v. Tex. Dept. of Protective & Regulatory Services /**/
IN THE
TENTH COURT OF APPEALS
No. 10-97-210-CV
THOMAS EDWARD SPANGLER,
Appellant
v.
TEXAS DEPARTMENT OF PROTECTIVE
AND REGULATORY SERVICES,
Appellee
From the 19th District Court
McLennan County, Texas
Trial Court # 95-4209-1
CONCURRING OPINION
Although I agree with the majority s decision to affirm the termination of Spangler s parental rights, I question their
decision to adopt a higher standard of review for factual sufficiency points when the burden of proof at trial is by clear
and convincing evidence. As I recently articulated in In re D.L.N., another termination proceeding, I believe appellate
courts should continue to apply the traditional factual sufficiency standard established by the Supreme Court. In re
D.L.N., No. 10-97-178-CV, slip op. at 10-12 (Tex. App. December 23, 1997, no pet. h.).
The purpose of a factual sufficiency review is to determine whether the appellant is entitled to a new trial because,
after looking at all the evidence, it appears that the jury s answer is so against the great weight and preponderance of
the evidence as to be clearly wrong and unjust. See Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); Pool v. Ford
Motor Co., 715 S.W.2d 629, 635 (Tex. 1986); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); In re King s Estate, 244
S.W.2d 660, 661-62 (Tex. 1951). This method of evaluating the factual sufficiency of the evidence, which has been
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directed by the Supreme Court in the cases cited above, appropriately balances the appellate court s need to review the
weight of the evidence presented at trial while it prevents the reviewing court from simply substituting its judgment for
that of the factfinder. We have said many times that the factfinder has the responsibility to resolve any disputes about
the weight and credibility of the evidence presented at trial, and I believe the factfinder s decision should not be
second-guessed on appeal unless it is so against the great weight and preponderance of the evidence as to be clearly
wrong and unjust. See Libhart v. Copeland, 949 S.W.2d 783, 803 (Tex. App. Waco 1997, no writ); Jacobs-Cathey Co.
v. Cockrum, 947 S.W.2d 288, 295-96 (Tex. App. Waco 1997, writ denied); Lance v. USAA Ins. Co., 934 S.W.2d 427,
428-29 (Tex. App. Waco 1997, no writ); see generally Lucas v. Texas Dep t of Protective and Regulatory Services,
949 S.W.2d 500, 502 (Tex. App. Waco 1997, pet. denied).
The majority s decision to adopt a higher standard of review relies on the fact that a termination of parental rights must
be proved at trial by clear and convincing evidence and not simply by a preponderance of the evidence. However, I do
not find this distinction to be a convincing reason to re-formulate the factual sufficiency standard of review set by the
Supreme Court. As I discussed in D.L.N., criminal cases have an even higher burden of proof at trial, beyond a
reasonable doubt, but on appeal we continue to apply the traditional factual sufficiency standard of the Supreme Court
which was adopted by the Court of Criminal Appeals in Clewis v. State, 922 S.W.2d 126, 129, 131 (Tex. Crim. App.
1996) (stating that their decision harmonize[d] the criminal and civil jurisprudence of this State with regard to
appellate review of questions of factual sufficiency ); In re D.L.N., 10-97-178-CV, slip op. at 12.
Consequently, because I disagree with the majority s decision to adopt a higher factual sufficiency standard of review
for termination cases, I cannot join the court s opinion. However, I wholeheartedly agree with the majority s
conclusion that Spangler s parental rights should be terminated either under the traditional factual sufficiency standard
which I have urged or under the higher standard utilized by the majority.
BOBBY L. CUMMINGS
Justice
Opinion delivered and filed February 4, 1998
Publish
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