E.G.M., In re

• Decision Date: 02 February 1983
• Docket Number: No. 04-81-00257-CV,04-81-00257-CV
• Citation: 647 S.W.2d 74
• Parties: In re E.G.M., a Child.
• Court: Texas Court of Appeals

Page 74

647 S.W.2d 74

In re E.G.M., a Child.

No. 04-81-00257-CV.

Court of Appeals of Texas San Antonio.

Feb. 2, 1983.

L. Sue Funk, San Antonio, for appellant.

Lee Alvarado, Jr., San Antonio, for appellee.

Before ESQUIVEL, CANTU and REEVES, JJ.

OPINION

CANTU, Justice.

This is a paternity suit brought by the Texas Department of Human Resources on behalf of R______ M______ and tried on February 21, 1980. The petition alleged that G______ M______ was the biological father of the child E______ G______ M______, and sought to secure appropriate child support orders concerning the child. Trial was had to the court without a jury. The procedures involved in this and any suit to establish paternity are specifically set out in the Tex.Fam.Code Ann. §§ 13.01-13.09 (Vernon Supp.1982-1983).

Pursuant to court order the mother, alleged father, and the child submitted to blood tests administered by court appointed medical experts Drs. Michael Stroud and D. Leo Galindo. A paternity testing report was provided the trial court and the parties agreed to waive the pretrial conference provided for by § 13.04. A stipulation was entered into by the parties that the blood test results failed to show by clear and convincing evidence that appellee was not the father of the child. A trial on the merits was requested and following a brief hearing a finding of non-paternity was entered by the trial court.

Appellant's sole point of error challenges the trial court's finding that the appellee is not the biological father of the child, arguing that the finding is against the great weight and preponderance of the evidence. Appellant places exclusive reliance upon the case of G------ v. G------, 604 S.W.2d 521 (Tex.Civ.App.--Dallas 1980, no writ) for reversal.

While appellant's point of error, as phrased, has given other court's license to limit review to only that evidence which is favorable to the trial court's finding because the contention fails to allege that the finding is so against such a preponderance of the evidence as to be manifestly unjust or clearly wrong; Poynor v. Varner, 266 S.W.2d 462 (Tex.Civ.App.--Eastland 1954, no writ); Vaughn v. Vaughn, 279 S.W.2d 427 (Tex.Civ.App.--Texarkana 1955, writ ref'd n.r.e. in accord with Poynor v. Varner but nevertheless reviewing entire record) we have examined appellant's argument and authorities and conclude that a factual sufficiency challenge was intended under the "against the preponderance of the evidence as to be manifestly unjust or clearly wrong" test. Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478 (1943). Accordingly under our fact finding jurisdiction we review the entire record. Traylor v. Goulding, 497 S.W.2d 944 (Tex.1973); Choate v. San Antonio & A & P Railway Co., 91 Tex. 406, 44 S.W. 69 (1898).

On direct examination, R______ M______, mother of the child, 22 years old at the time of trial, testified that she met appellee, who was 18 years old at the time of trial, during the latter part of October, 1978, at a wedding. She testified that they began dating within a week. About a month after their initial meeting, she testified, the parties initiated sexual activity and the parties thereafter had intercourse at least once a week or whenever appellee came by her house. Sexual activity between the parties continued until late in the month of December, 1978. R______ M______ contended that during the months of October, November and December of 1978, appellant was the only person with whom she had sexual intercourse. During direct examination appellant also claimed to have had intercourse with appellee in September, 1978, fully one month before she met him, according to her own testimony.

R______ M______ believed that she became pregnant about November 28, 1978, after confirming her pregnancy about the middle of December. The child was born September 4, 1979, one day before her doctor told her to expect it.

On cross-examination, R______ M______ admitted that she had been keeping a diary containing the names of all the men she had engaged in sexual intercourse with and the date on which each act occurred. She explained that she discarded the diary on December 28, 1978, because she "... didn't need it--didn't want to keep it anymore."

R______ M______ specifically recalled having sexual intercourse with appellee on the 5th, 12th and the 22nd days of December, 1978. Although she claimed to have seen appellee on December 31, 1978, she did not purport to have engaged in sexual activity with appellee after December 22, 1978.

R______ M______ admitted knowing someone identified as "Armando" and did not deny engaging in sexual intercourse with him. However, she claimed not to have seen him since May of 1978.

She adamantly denied engaging in sexual intercourse with anyone between the period of time from May through November 1978. This is in direct conflict with her testimony that she engaged in sexual intercourse with appellee in September and October as well as in November and December.

Belinda Litzler, testifying on behalf of appellant stated that she had double dated with R______ M______ and appellee during the beginning of her senior year in high school. Because of the warm weather, she believed the date occurred in September or possibly October of 1978. She specifically remembered going to a Pigstand Drive-in restaurant and R______ M______ becoming ill and going to the restroom to vomit. Two weeks later, Litzler recalled R______ M______ informed her that she was already over two months pregnant. ¹

Appellant called R______ M______'s brother Ramon who testified that he remembered seeing appellee at his sister's house twice during the month of December, 1978. On cross-examination Ramon admitted that his recollection as to the dates had been refreshed by conversations with R______ M______ before the trial. He also admitted calculating the time frame based upon the nine month period in a normal pregnancy.

Appellant's final witness was Dr. Michael Stroud, a pathologist engaged in performing paternity testing. Dr. Stroud testified that he had been appointed by court order to perform blood tests on R______ M______, appellee, and the child to determine possible paternity. He described four blood grouping tests performed and concluded that the tests did not exclude appellee as being the father of the child in question. He further expressed the opinion that appellee was possibly the father of the child, that genetically it is possible for appellee to be the biological father and that the chances were 90.2 to 1 that appellee was the father of the child.

During cross-examination Dr. Stroud admitted that under the first test approximately 90.3 percent of all Mexican Americans in the United States could have the same genetic makeup capable of supporting a finding of being the father.

The second test revealed that all three of the parties tested belonged to blood group N. According to Dr. Stroud 43% of the Mexican American population carry that particular characteristic. When asked about the third and fourth tests Dr. Stroud admitted that it is possible that another man could have a chromosome setup identical to appellee's and that it is virtually impossible to prove conclusively that any one particular man is the father of a given child.

In response to examination by the trial court Dr. Stroud admitted that under the fourth test, HLA typing, if there is no exclusion of paternity the likelihood of paternity was usually greater than 90%. Dr. Stroud explained that his final figure of 98.9 percent likelihood of paternity was based upon computation involving the figures obtained from all four tests.

Appellee testified that he was 15 years old when he met R______ M______ while visiting one of his friends who was sharing a house with R______ M______ and another female. Appellee admitted having intercourse with R______ M______ on three or four occasions but could not remember the dates. He, however, speculated that they did not occur in December 1978 ² because he had just met R______ M______ either in November or December and he was sure he had not stayed with R______ M______ until sometime after he met her. ³

Although appellee did not profess to know "Armando" he stated that R______ M______ kept his photograph in her bedroom and that she told him she was secretly married to Armando.

R______ M______ did not rebut any of appellee's testimony, however, much of it was consistent with her own testimony particularly on the material issues before the court.

The duration of pregnancy, or period of gestation, is the interval in days between the time of impregnation and the beginning of labor. The normal period of gestation, according to the consensus of medical authority, is approximately 9 calendar months, 10 lunar months, or 280 days, calculated from cessation of the last menstruation. Taylor's Med.Jur. ii, 45, 46; Schatkin, Disputed Paternity Proceedings, 4th ed. (1980). ⁴

According to R______ M______ conception occurred about November 28, 1978. A normal period of gestation calculated from the date of the child's birth would place the date of conception at about November 29, 1978. There is no evidence that the child was not a full term infant. To the contrary, the child weighed eight pounds, five ounces at birth and was, according to R______ M______, born one day before expected.

If the period of time suggested by the...