In the Interest of K.R.

Citation22 S.W.3d 85
Parties<!--22 S.W.3d 85 (Tex.App.-Houston 2000) IN THE INTEREST OF K.R., A CHILD NO. 14-98-00118-CV In The Fourteenth Court of Appeals
Decision Date08 June 2000
CourtCourt of Appeals of Texas

On Appeal from the 246th District Court Harris County, Texas; Trial Court Cause No. 96-01156

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before Chief Justice Murphy and Justices Yates, Amidei, Anderson, Hudson, Fowler, Edelman, Wittig, Frost, and Draughn, En Banc. *



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., 844 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. Stanley, 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 (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 cases 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 [14th 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 Servs., 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 Servs., 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...

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