White v. Hamlett (Tex.App.- Austin 2008)

Spouses Dennis White and Karen Hamlett appeal a judgment awarding Larry Baugh, Hamlett's ex-husband, title to and possession of real property located in Travis County. Baugh had sued to enforce the property division in the 1991 divorce decree that had ended his marriage with Hamlett, which had included a residuary clause that awarded all undisclosed property to the party not in possession of it. Baugh's central theory at trial was that the decree had awarded him the real property because the property had been purchased with community funds while they were still married. In six points of error, White and Hamlett challenge the legal and factual sufficiency of the evidence supporting two of the jury findings; assert that the district court erred in denying their motion for new trial, motion to disregard jury findings, and motion for judgment notwithstanding the verdict; and contend that the district court abused its discretion in awarding Baugh $55,000 in attorney's fees. In a cross-appeal point of error, Baugh asserts that the district court abused its discretion by assessing the attorney's fees award against Hamlett but not White. We will affirm the judgment.

AFFIRMED: (Before Justices Patterson, Pemberton and Waldrop)
(Tex.App. - Austin, May 28, 2008)(Pemberton) (family law, domestic relations, divorce, community property, separate property, jury trial)
Appellants, Dennis White and Karen Hamlett f/k/a Karen Baugh// Cross-Appellant, Larry Baugh v. Appellee, Larry Baugh// Cross-Appellees, Dennis White and Karen Hamlett f/k/a Karen Baugh--Appeal from 167th District Court of Travis County

BACKGROUND

The jury heard evidence that, in 1981, Baugh and Hamlett married. During their marriage, they acquired substantial community property, including a home valued at over $500,000 located in Austin's West Lake Hills area, a ranch in Manor where they bred race horses, and a vacation home in New Mexico. The couple had two daughters.
Baugh's and Hamlett's lives changed dramatically beginning in February 1988, when Baugh was arrested and later pleaded guilty to income tax evasion and possession of marihuana with intent to deliver, resulting in his incarceration from 1988 until 1994. Following Baugh's arrest, Hamlett took control of the family's financial affairs. While some of the couple's assets were seized or forfeited during the criminal proceedings, Hamlett retained control over, and liquidated, most of their other assets, including at least one bank account that had "[p]robably a few thousand dollars" in it, at least 50 race horses valued at approximately $5,000 each, and all of the ranch equipment, vehicles and accounts receivable from the family's business. (1) Hamlett's parents, Gladys V. Hamlett and Martin Leon Hamlett, moved from El Paso to Austin to assist their daughter during this time. Gladys moved in with Hamlett and Hamlett's daughters. Also in 1988, Hamlett began dating Dennis White, a former employee at the horse ranch. (2)
By October 1988, Hamlett had filed for bankruptcy and could no longer afford payments on the house. (3) The lender instituted foreclosure proceedings. Hamlett testified that she contacted a realtor to help her find a new place to live. One day, while Hamlett and her mother were driving around the area looking for a place to rent, they came across a townhouse for sale at 6405 Weatherwood Cove. Hamlett contacted the realtor for information about the property.
In February 1989, Hamlett's parents signed an earnest money contract to purchase the townhouse for $74,000.00, to be paid, in part, from the proceeds of a $52,000 loan. In April 1989, the parents, under their names, executed a promissory note and mortgage with Homestead Savings for $52,000, with monthly payments of $437.50 per month for thirty years. In the loan application, the parents specified that their income at the time was $1,177 per month. They also claimed additional income of $365 per month from Hamlett's leasing of their El Paso property. However, Hamlett admitted that she never actually rented her parents' El Paso house--to the contrary, she moved directly from the house in Westlake to the house on Weatherwood Cove. Hamlett provided the following testimony about the purported lease agreement:
Q: In 1989 you signed a lease that was fictitious about moving to El Paso in order to make sure that you could get the Weatherwood Cove home; is that correct?
A: I signed it in order for my parents to be able to buy that home.
. . . .
Q: And you were willing to lie to have that happen?
A: I don't recall the rationale behind it, but it was a necessary thing in order for my parents to get the loan.
Appellants also acknowledge in their brief that the lease of the El Paso property was "phony."
In 1990, while Baugh remained incarcerated, White moved in with Hamlett and her daughters at their Weatherwood Cove residence. In February 1991, Baugh and Hamlett divorced. In June of that same year, Hamlett's parents signed a contract to sell the Weatherwood Cove property to White. The sales contract provided that the purchase price was $57,000, with financing by the sellers, on a note with principal and interest payments of $437.25 per month for 28 years. These terms corresponded with the amount and term of payments remaining on the parents' mortgage. The contract also provided that closing and title transfer would occur upon full payment of the note.
In 1993, approximately one year after White and Hamlett purported to be married under common law, the parents transferred title to White. According to the 1993 closing statement, the sales price was $74,000, with a portion of the price financed through a mortgage in White's name. The mortgage loan application specified that title would be held in the name of "Dennis Dale White," a "single male." The warranty deed conveyed title to "Dennis Dale White, a single person." At trial, White was unable to explain why these documents referred to him as single when, in fact, he was married to Hamlett at the time the documents were executed.
Hamlett's parents received $21,401.41 in cash at closing. However, there was evidence presented at trial that, three weeks after closing, this same amount was deposited back into White and Hamlett's joint bank account. When confronted with a deposit slip for the exact amount of the sellers' proceeds, showing that the funds were deposited into this bank account, White testified that he was "a little confused." However, when asked if the matching amounts were "just a coincidence," White responded, "No." White also claimed that he and Hamlett did not own a joint bank account at the time of the closing. However, after he was shown an account statement for the month in which the closing occurred and the deposit was made, he acknowledged that both his and Hamlett's names appeared on the statement. Hamlett testified that the money deposited into the account belonged to both her and White, and she agreed with Baugh's characterization of her "as sort of a silent partner" in White's purchase of the home.
In January 2001, Baugh learned for the first time about the Weatherwood Cove property. Baugh testified that Gladys, Hamlett's mother, told him that "the truth about that home purchase in Austin" was that "it was Karen's purchase all along." According to Baugh, Gladys added, "We were nothing more than her trustee."
In March 2001, Baugh filed suit against Hamlett to enforce the property division in the divorce decree. Baugh alleged in his petition that the decree failed to specifically award the property located at 6405 Weatherwood Cove and that, under the terms of the decree's residuary clause, the property belonged to him. (4)
In 2002, Baugh amended his petition to add White as a defendant. Baugh alleged that White conspired with Hamlett's parents to convey title in the subject property to White.
During discovery, Hamlett's mother executed a sworn statement describing the circumstances surrounding the purchase:
TO WHOM IT MAY CONCERN:
Narrative of events relating to purchase of home at 6405 Weatherwood Cove, Austin, Texas 78746, by Gladys Hamlett, covering the time period from 1988 to 1992.
In the summer of 1988, my daughter, Karen Baugh (nee Hamlett), was separated and intending to divorce her husband Larry Baugh. She asked if I and Mr. Hamlett (her parents) would purchase a home for her, in our name. She found the home, gave me the purchase money (in cash), and I and Mr. Hamlett did purchase the home FOR HER. We had no funds or interest in the home at all. Karen was always responsible for and made the mortgage payments, taxes, etc.
A fire occurred in Nov. 1990, for which an insurance check for about $30 thousand was issued, and I signed over to Karen. She used it for repairs. Not me.
In the summer of 1991, Karen asked me to leave the home where I had been residing with she and her two children. I moved away since it was her home, and had always been in her control.
Later that summer or fall, she asked me and Mr. Hamlett to sign the house into her name. We agreed and did sign and transfer title to Karen (Hamlett), since she was now divorced.
This statement is from memory, and is substantially accurate.
Given this 23rd day of Feb. 2001
//s// Gladys Hamlett
(Emphasis added). This affidavit was admitted into evidence, along with Gladys's deposition testimony from 2001. In the deposition, Gladys provided additional details about the purchase. Among other details, Gladys testified that she and Leon did not have the financial ability to purchase the house. Gladys also testified that she did not remember how much money Hamlett gave her to purchase the house, but she thought it could have been $10,000 in cash that Hamlett had previously set aside "in her closet in a boot." Gladys further testified in her deposition that every statement in her affidavit was true and correct. Later at trial, however, Gladys recanted her prior statements, testifying that her statements in the affidavit were not true and that she had lied during her deposition.
At the conclusion of trial, the district court submitted jury issues regarding the extent to which the townhouse had been purchased with Baugh and Hamlett's community funds, whether Baugh was estopped from asserting or had waived his claim to the property, whether White was a bona fide purchaser for value when he bought the property, and the amount of each parties' attorney's fees. The jury found that the property had been purchased entirely with community funds, that Baugh was not estopped from and had not waived his claim to the property, that White was not a bona fide purchaser for value, and that Baugh had incurred $55,000 in trial-level attorney's fees, plus $5,000 for an appeal to this Court, and another $5,000 each if a petition for review was filed in or granted by the supreme court. The district court rendered judgment on the jury's verdict, awarding Baugh title to and possession of the property, and that he recover from Hamlett the amount of attorney's fees found by the jury. This appeal followed.
DISCUSSION
Community funds
Appellants' first five points of error concern the jury's findings related to community funds. Question 1 of the charge asked, "Was all or a portion of the property located at 6504 Weatherwood Cove Austin, Texas purchased with the community funds of Larry Baugh and Karen Baugh in 1989?" Conditioned on an affirmative answer to Question 1, Question 2 inquired as to the amount of community funds that were used for the purchase. The jury was instructed not to answer Question 2, however, if it found that all of the funds used to purchase the property were community funds. The charge defined "community property" as "the property, other than separate property, acquired by either spouse during marriage" and "separate property" as "property owned or claimed by a spouse prior to marriage, or acquired by gift, devise, or descent." The jury found in the affirmative on Question 1, but did not answer Question 2. By this, the parties agree that the jury necessarily found that the Weatherwood Cove property had been purchased entirely with community funds. In appellants' first and second points of error, they contend there is either legally or factually insufficient evidence to support the jury's findings that the property was purchased entirely with community funds. In their third point of error, appellants assert that there is factually insufficient evidence to support the jury's finding in Question 1 that a portion of the property was purchased with community funds. (5) In their fourth and fifth points of error, appellants argue that the district court abused its discretion in overruling their motion for new trial and erred by denying their motion to disregard jury findings and motion for judgment notwithstanding the verdict. In these points, they assert the same arguments they raise in their sufficiency points.
We will sustain a legal-sufficiency complaint if the record reveals: (a) the complete absence of a vital fact; (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; or (d) the evidence establishes conclusively the opposite of the vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005). We review the evidence in the light favorable to the verdict, crediting favorable evidence if reasonable jurors could and disregarding contrary evidence unless reasonable jurors could not. Id. at 807. The ultimate test for legal sufficiency is whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review. See id. at 827.
When reviewing a challenge to the factual sufficiency of the evidence supporting a vital fact, we must consider, weigh, and examine all of the evidence in the record, both supporting and against the finding, to decide whether the verdict should be set aside. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). We should set aside the verdict only if the evidence that supports the jury finding is so weak as to be clearly wrong and manifestly unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). But we may not merely substitute our judgment for that of the jury. Pool, 715 S.W.2d at 635. The jury remains the sole judge of witnesses' credibility and the weight to be given their testimony. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003).
With both legal and factual sufficiency challenges, the starting point of our analysis--barring a preserved and valid complaint of charge error, and there is none here--is the charge actually submitted to the jury. Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000) (legal sufficiency); Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 762 (Tex. 2003) (factual sufficiency); Ancira Enters., Inc. v. Fischer, 178 S.W.3d 82, 93 (Tex. App.--Austin 2005, no pet.).
In their challenges to the findings that all of the funds used to purchase the property were community funds, appellants rely entirely on the fact Hamlett's parents took out a $52,000 loan under their names in connection with the purchase of the property. Appellants urge that this fact conclusively establishes that Hamlett's parents, not Hamlett, acquired the property and paid at least this portion of the purchase price. We disagree.
Under the broad form questions submitted to the jury, the jury was asked simply to determine whether all or a portion of the property was purchased in 1989 with the community funds of Hamlett and Baugh. The form of these questions enabled the jury to find that the property was purchased using only community funds under any legal theory supported by the evidence. See Hyundai Motor Co. v. Rodriguez, 995 S.W.2d 661, 664 (Tex. 1999) ("When feasible, jury questions should be in broad form, accompanied by appropriate instructions and definitions. A single question may relate to multiple legal theories.") (citing Tex. R. Civ. P. 277). Further, under the definitions provided by the district court, the jury was to presume that property acquired during marriage by either spouse was community property unless it was shown to be separate property. Appellants have preserved no complaint of error in these questions, definitions or instructions, nor regarding the omission of any questions, definitions or instructions.
The evidence enabled the jury to find that the property had been purchased exclusively with community funds based on legal theories that included resulting trust, (6) agency, and that Hamlett and her parents engaged in a scheme to conceal her ownership and defraud Baugh of his community property rights. (7) Among other evidence, the jury considered Gladys's statements that Hamlett "found the home, gave me the purchase money (in cash), and I and Mr. Hamlett did purchase the home FOR HER," and that she and her husband "had no funds or interest in the home at all." Gladys also stated that Hamlett "was always responsible for and made the mortgage payments, taxes, etc.," (8) and appellants point to no evidence, other than Gladys's subsequent recantations, that anyone else ever made such payments. When asked during her deposition who was going to pay for the purchase price of the house, Gladys answered, "Not us."
The jury also heard evidence indicating that the parents did not have the financial resources to assume the note obligations and purchase the property. In addition to Gladys's statements, the parents' 1988 and 1989 tax returns were admitted into evidence, which reported total income of $14,591.23 in 1988 and $20,946.60 in 1989. Moreover, the parents' residential loan application stated that their income at the time of the loan application was $1,177 per month, while their existing mortgage and utilities payments on their house in El Paso totaled $446.00 per month. The mortgage on the Weatherwood Cove property was $437.25 per month. Adding other costs, such as property taxes, to that amount results in total housing costs of $551.83 per month for the Weatherwood Cove property. Thus, when the two house payments are added together, the parents would have owed over $997 per month on housing costs alone. Subtracting this amount from the parents' monthly income of $1,177 would have left them less than $200 per month for other living expenses, such as food, clothing, and transportation.
The jury also considered other evidence that Hamlett acted as the owner of the property, including the application for utility service submitted to the Municipal Utility District in 1989, which was made on behalf of "Karen Baugh by Gladys Hamlett" and directed that billing be sent to Karen Hamlett. There was also evidence that even though Hamlett's parents supposedly owned the property, Leon never lived there and Gladys did so only so long as Hamlett permitted. Similarly, a 1993 statement from the Valley of Lost Creek Homeowners Association predating the title transfer to White identifies Hamlett as an owner and states that "Dennis White and Karen Hamlett are members in good standing of the Valley of Lost Creek Homeowners Association and owe no fees or dues." Finally, the circumstances of the eventual sale of the property to White, the jury could have concluded, were consistent with both an ongoing strategy to conceal Hamlett's interest in the property (e.g., the false description of White as single) and a recognition by the participants that Hamlett had been the beneficial owner all along. These circumstances include evidence that three weeks after the parents transferred title to White, $21,401.41 was deposited into a joint bank account belonging to White and Hamlett. This amount precisely matched the amount of cash that the parents had received at closing. The jury could have inferred from this evidence that Hamlett's parents were returning the proceeds they had received in the sale, including the value of what would have been any accumulated equity in the property. We conclude that when viewed in the light favorable to the verdict, the above evidence is legally sufficient to support the jury's findings. We overrule appellants' first issue.
Regarding their factual sufficiency challenge, appellants argue that the only evidence supporting the jury findings is Gladys's statement in her affidavit, which she later disclaimed at trial, that she and her husband "had no funds or interest in the home at all." This statement, according to White and Hamlett, "is absolutely overwhelmed by the single but altogether sufficient fact that the Hamletts, and the Hamletts alone, obtained $52,000.00 dedicated to the purchase of the property from the proceeds of a loan for [which] they, and they alone, were liable."
We have already discussed the evidence relating to the $52,000 loan, and it is not limited to the single statement that appellants emphasize. It is true that Gladys later recanted both her affidavit and her deposition testimony at trial. However, it was within the jury's province to credit Gladys's prior statements and disbelieve her trial testimony. The jury heard evidence that Gladys and her daughter Hamlett had a strained relationship. Hamlett testified that, in 1994, she asked Gladys to move out of their house. Gladys testified that this made her angry, hurt, and scared. Furthermore, Gladys testified that when her husband died in 1999, Gladys had a legal dispute with her daughters over the disposition of her husband's estate. There was also acrimony involving Hamlett's daughter and Gladys's granddaughter, Tara. Tara testified that she had a good relationship with her grandmother, and that they talked "everyday, several times a day." By contrast, Tara did not have "much of a relationship" with her mother. Tara, who was 25 at the time of trial, testified that she moved out of her mother's house when she was 15 and moved in with Gladys. However, Tara also testified that, "a few years ago," she and her mother "started talking again and trying to work through some of the things that we didn't like about each other." In fact, there was evidence presented that Hamlett came to Tara's aid during the weeks immediately prior to trial and provided Tara with money to prevent Tara's house from being foreclosed. Appellants assert that these issues between Gladys and her daughter prompted Gladys to lie in 2001 about the circumstances surrounding the purchase of the property. However, the jury was entitled to believe the contrary proposition--that the mother-daughter acrimony during the '90s prompted Gladys in 2001 to come forward with the truth about her daughter's deception, and that Hamlett's assistance to Tara prior to trial had prompted Gladys--whom the jury could have concluded had periodically engaged in other deceptive acts to help Hamlett--to resume that pattern at trial.
Hamlett denied that any community funds had been used in the purchase of the property, and she claimed that the money deposited into the joint bank account was a gift from her parents, not a repayment of money that she had originally contributed toward the purchase of the house. However, the jury was entitled to disbelieve this testimony, especially in light of the other evidence tending to bring Hamlett's credibility into question. Appellants also emphasized evidence concerning Baugh's criminal problems. This evidence, at most, goes to the credibility of Baugh as a witness.
Appellants also presented evidence that White spent between $150,000 and $200,000 in improving the property after he purchased it. Thus, according to White and Hamlett, it is "unfair" for Baugh to benefit from these improvements. To the extent appellants are claiming an entitlement to reimbursement, or offset, for these improvements, they have waived it. "The right to an offset is an affirmative defense. The burden of pleading and proving facts necessary to support an affirmative defense of offset rests on the party making the assertion." Mays v. Bank One, N.A., 150 S.W.3d 897, 899 (Tex. App.--Dallas 2004, no pet.) (citing Brown v. American Transfer and Storage Co., 601 S.W.2d 931, 936 (Tex. 1980)). Appellants did not plead any affirmative defenses at trial, nor did they request any jury instructions on this issue. They cannot raise it for the first time on appeal. See Columbia Med. Ctr. of Las Colinas v. Bush, 122 S.W.3d 835, 862 (Tex. App.--Fort Worth 2003, pet. denied) ("Regardless of the merits of Appellants' argument that they are entitled to an offset, because they did not plead an affirmative defense of offset, this issue is waived.").
After considering all of the evidence in the record, we conclude that the evidence supporting the jury's findings that the property was purchased entirely with community funds is not so weak as to be clearly wrong and manifestly unjust. We overrule appellants' second point of error. Further, as our disposition of appellants' first two points of error are dispositive of their third, fourth, and fifth ones, we overrule them as well.
Attorney's fees
In their sixth point of error, appellants urge that if we reverse the judgment, we should remand the issue of attorney's fees to the district court for redetermination. Because we have overruled appellants' points challenging the merits of the judgment, we overrule their attorney's fees point as well.
In his cross-point of error, Baugh asserts that it was an abuse of discretion for the district court to assess his attorney's fees solely against Hamlett and not against White. He contends that because the jury found that White was not a bona fide purchaser for value, the jury also necessarily found that White was not acting in good faith. Thus, according to Baugh, White should necessarily be liable for attorney's fees. On this record, we find no abuse of discretion in the district court's decision to order Hamlett, but not White, to pay the attorney's fees. We overrule Baugh's cross-point.
CONCLUSION
Having overruled White and Hamlett's points of error and Baugh's cross-appeal point of error, we affirm the judgment of the district court.
__________________________________________
Bob Pemberton, Justice
Before Justices Patterson, Pemberton and Waldrop
Affirmed
Filed: May 28, 2008
1. Hamlett testified that she used some of the funds from the sale of the assets to attend nursing school in 1989.
2. White testified that he worked as a carpenter at the ranch for approximately six months in 1984, also performing various duties like feeding the horses.
3. According to Hamlett, the bankruptcy was never completed.
4. The residuary clause provides the following:
Division of Assets and Liabilities Not Provided for In Decree.
IT IS FURTHER ORDERED AND DECREED, as a part of the division of the estate of the parties, that any community property or its value not otherwise awarded by this decree is awarded to the party not in possession or control of the property. IT IS FURTHER ORDERED AND DECREED that the party in possession and control of such property is designated a constructive trustee of the property for the benefit of the other party.
IT IS FURTHER ORDERED AND DECREED, as a part of the division of the estate of the parties, that any community liability not expressly assumed by a party under this decree is to be paid by the party incurring the liability.
5. Appellants concede that there is legally sufficient evidence to support the jury's finding that at least a portion of the property was purchased with community funds.
6. See Sahagun v. Ibarra, 90 S.W.2d 860, 863-64 (Tex. App.--San Antonio 2002, no pet.).
7. Appellants argue that it was Baugh who had the burden to obtain jury findings on each of these theories. As these theories were subsumed within the unobjected-to broad-form questions actually submitted to the jury, we reject that contention. See Tex. R. Civ. P. 278, 279.
8. See Dalton v. George B. Hatley Co., 634 S.W.2d 374, 379 (Tex. App.--Austin 1982, no writ) ("[P]ayment or satisfaction [of an instrument] may be made with the consent of the holder by any person including a stranger to the instrument.").

Justice Patterson Dissents in Workers Compensation Appeal: American Protection Ins. Co. v. Leordeanu

American Protection Insurance Company vs. Liana Leordeanu, No. (Tex.App.- Austin, August 2, 2007)(Dissenting Opinion by Justice Patterson)(workers compenstation appeal)(Before Justices Patterson, Pemberton and Waldrop)
Appeal from 201st District Court of Travis County
Also see Majority Opinion in American Protection Ins. Co. v. Leordeanu

DISSENT: The majority is correct that the statute is semantically challenging. But the trial court gave a correct statement of the law in its instruction and identified the ultimate destination for the jury's journey. The jury accomplished the task it was asked to do. Because the evidence in this case, assessed under the appropriate standard, was clearly sufficient to support the jury's finding of course and scope of employment, Justice Patterson respectfully dissents.

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT
NO. D-1-GN-04-001199, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING

DISSENTING OPINION BY JUSTICE JAN PATTERSON

Liana Leordeanu was a pharmaceutical sales representative injured in an accident while driving from a business dinner to a storage unit to unload and reorganize the sales materials in her company car. This case hinges on a single issue: was Leordeanu in the course and scope of her employment at the time of her injury? The jury answered the question in the affirmative. Because there is ample evidence to support the jury's finding, and the evidence is legally and factually sufficient, I would affirm the judgment.

Workers' compensation benefits are recoverable only where the death or injury in question occurs in the course and scope of the employee's employment. Deatherage v. International Ins. Co., 615 S.W.2d 181, 182 (Tex. 1981). "'Course and scope of employment' means an activity of any kind or character that has to do with and originates in the work, business, trade, or profession of the employer and that is performed by an employee while engaged in or about the furtherance of the affairs or business of the employer." Tex. Lab. Code Ann. § 401.011(12) (West 2006). The term includes activities conducted on the premises of the employer or at other locations. Id. Work that is directed or authorized by the employer is within the course of employment regardless of whether the work benefits the employer's business. Burkett v. Welborn, 42 S.W.3d 282, 287-88 (Tex. App.--Texarkana 2001, no pet.). An injury "arises out of" employment if it would not have occurred if the conditions and obligations of employment had not placed the claimant in harm's way. Tex. Workers' Comp. Ins. Fund v. Simon, 980 S.W.2d 730, 735-36 (Tex. App.--San Antonio 1998, no pet.).

It is well settled that courts should construe the Workers' Compensation Act liberally in order to carry out the legislature's evident purpose of compensating injured workers and their dependents. Texas Workers' Compensation Comm'n v. Patient Advocates of Texas, 136 S.W.3d 643, 652 (Tex. 2004); Ackerson v. Claredon Nat'l Ins. Co., 168 S.W.3d 273, 275 (Tex. App.--Austin 2005, pet. denied); see also Liberty Mut. Ins. Co. v. Camacho, __ S.W.3d __, 2007 Tex. App. LEXIS 4856 *9-10 (Tex. App.--Beaumont June 21, 2007, no pet. h.). Its provisions "should not be hedged about with a strict construction but should be given a liberal construction to carry out its evident purpose." Lujan v. Houston General Ins. Co., 756 S.W.2d. 295, 297 (Tex. 1998) (quoting Yeldell v. Holiday Hills Retirement & Nursing Center, Inc., 701 S.W.2d 243, 245 (Tex.1985)).

With that context, we begin our analysis from the vantage point of a well-established rule: Ordinarily an employee is not within the course and scope of his employment when he is injured going to and coming from work. Tex. Lab. Code Ann. § 401.011(12)(A); Evans v. Illinois Employers Ins., 790 S.W.2d 302, 304 (Tex. 1990); Texas General Indemnity Co. v. Bottom, 365 S.W.2d 350, 353 (Tex. 1963). The rationale for this rule is that such injuries do not arise out of a person's employment, but are suffered as a consequence of the risk to which all traveling persons are exposed. Evans, 790 S.W.2d at 304.

There are some exceptions to this general rule. Transportation to and from the place of employment may be in the course and scope of employment if the transportation is furnished as part of the contract of employment or is paid for by the employer. Tex. Lab. Code Ann. § 401.011(12)(A)(i); Bottom, 365 S.W.2d at 353-54; see also Poole v. Westchester Fire Ins. Co., 830 S.W.2d 183, 185-87 (Tex. App.--San Antonio 1992, writ denied) (issue of fact as to whether sales manager on way to work in company car with logo fell within exception to general commute rule). The key issue in determining whether compensation is available for an injury incurred while traveling to or from work under this exception is whether the employer's furnishing or paying for the transportation was an integral part of the employment contract or merely an accommodation to the employee. In the former case, the injury is within the course of employment and is compensable; in the latter, it is not. See Rose v. Odiorne, 795 S.W.2d 210, 214-15 (Tex. App.--Austin 1990, writ denied) (oil rig employee entitled to compensation if employer's transportation plan (1) was essential for transporting employees to remote job site, (2) benefitted employer, and (3) was needed to operate rig).

An exception has also been created for "special missions" when an employee is directed in his employment to proceed from one place to another. See Tex. Lab. Code Ann. § 401.011(12)(A)(iii); Evans, 790 S.W.2d at 304. The supreme court has construed this exception to include "those situations in which the employee proceeds from one place to another under the terms of an employment which expressly or impliedly requires that he do so to discharge the duties of his employment." Jecker v. Western Alliance Ins. Co., 369 S.W.2d 776, 778 (Tex. 1963), overruled on other grounds by McKelvy v. Barber, 381 S.W.2d 59 (Tex. 1964).

Known as the "dual purpose rule," section 01.011(12)(B) of the labor code addresses situations in which an employee is injured while traveling for both personal and business reasons. Tex. Lab. Code Ann. § 401.011(12)(B). The rule provides that injuries incurred during travel for the dual purpose of furthering the affairs or business of the employer and of furthering the employee's personal or private affairs shall not be deemed in the course of employment unless (1) the trip to the place of the accident would have been made even had there been no personal or private affairs of the employee to be furthered by the trip, and (2) the trip would not have been made had there been no affairs or business of the employer to be furthered by the trip. Id.; Janak v. Texas Employers' Ins. Ass'n, 381 S.W.2d 176, 180-81 (Tex. 1964); Wausau Underwriters Ins. Co. v. Potter, 807 S.W.2d 419, 422-23 (Tex. App.--Beaumont 1991, writ denied). Texas courts have held that to be entitled to workers' compensation benefits in dual purpose situations, the employee or his survivors must satisfy both prongs of the dual purpose rule. Janak, 381 S.W.2d at 180; Tramel v. State Farm Fire & Cas. Co., 830 S.W.2d 754, 756 (Tex. App.--Fort Worth 1992, writ denied).

Citing to Evans that an employee's trip from "work to home" was "purely personal" and to Tramel "noting that an employee's trip from home to work serves 'private, personal purpose[s],'" the majority concludes that Leordeanu's travel from the restaurant on the night in question was for both business and personal purposes, and that she did not satisfy both prongs of the dual purpose test. Although arguing that "this is a simple case involving a single issue," American Protection variously urges that (i) unless the motivating purpose for the travel to the place of occurrence of the accident is a work purpose, travel in service of a personal purpose is not covered under the Act, (ii) travel from work to home is inherently personal, and (iii) the work must be the primary reason for the travel, without which reason, the trip would not have occurred. American Protection acknowledges that Leordeanu submitted sufficient evidence to prove a business reason for the trip, but asserts that unless she "can show that she would have not returned to home on the evening of her accident," she is not entitled to recovery under the Act.

We will sustain no-evidence points of error only if the record shows (1) a complete absence of evidence of a vital fact; (2) rules of law or rules of evidence bar the appellate court from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence conclusively establishes the opposite of a vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810-11 (Tex. 2005). We must view the evidence in the light most favorable to the verdict, crediting favorable evidence where reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. Id. at 827. The final test for legal sufficiency must always be whether the evidence at trial would allow reasonable and fair-minded people to reach the verdict under review. Id. "It is the court's charge, not some other unidentified law, that measures the sufficiency of the evidence when the opposing party fails to object to the charge." Soto v. Seven Seventeen HBE Corporation, 52 S.W.3d 201, 209-10 (Tex. App.--Houston [14th Dist.] 2000, no. pet.) (quoting Osterberg v. Peca, 12 S.W.2d 31, 55 (Tex. 2000)).

The trial court rejected American Protection's motion for summary judgment asserting that the dual purpose rule barred Leordeanu's claim for benefits "because there has been no evidence offered that Ms. Leordeanu would not have gone home (that she would have abandoned the trip home) absent a business reason for going to the [storage unit] . . . ." As the trial court correctly recognized in denying summary judgment, the disputed question as to whether Leordeanu was acting within the course and scope of employment was a question for the jury.

The evidence showed that, as a traveling pharmaceutical sales representative, Leordeanu marketed pharmaceutical products to pharmacies and approximately 400 doctors in a designated territory that included Austin, Bastrop, La Grange, New Braunfels, and San Marcos. According to her testimony, Leordeanu often hosted physicians and their staffs at work-related events at local restaurants. Her job description included calling on doctors, hosting events, and marketing to doctors, pharmacies and their staffs. Each sales call was reported to the company and the job contemplated extensive administrative tasks, including documenting each contact, distributing and accounting for manufacturers' samples, and submitting expense reports. To accomplish these administrative tasks, Leordeanu maintained a home office in her apartment.

American Protection adduced testimony from a representative of the employer that Leordeanu's place of employment was her home and that the company did not maintain an office in the State of Texas. Leordeanu converted an extra room into her home office where she maintained office equipment, including a computer, printer, and facsimile machine--all paid for and maintained by the company. She also maintained sales materials and manuals in her home office. Another sales representative testified that each sales representative has a similar setup. Leordeanu did her extensive paperwork in her home office. She sometimes did paperwork at night and on the weekend. The company also provided Leordeanu with a company vehicle for which it paid for business-related gas and repair expenses.

Each sales representative also had the option of maintaining a storage area in his home for which he was paid a monthly stipend or maintaining a separate storage unit off site which was paid for by the company. Leordeanu opted to maintain a storage unit in a nearby storage facility that was temperature controlled. She stored samples and marketing materials and kept no personal items in the storage unit. The storage unit was on the road to her home. She would go to her storage unit frequently, "twice a day," "quite a few times," often on weekends. A representative of her employer testified that it was at her discretion when to go to the storage unit.
On the day of the accident, Leordeanu completed a sales call at a doctor's office in Bastrop and then drove to La Feria Restaurant in Austin to host a dinner for medical personnel. It is undisputed that the event at the La Feria Restaurant was hosted by the company and was a company event. It was a "standard" event for a customer. Approximately ten employees and the doctor from the clinic attended. The sales representatives often hosted similar events each week that were considered part of their work.

Leordeanu testified that on the evening of the accident, after the restaurant event, she was going first to her storage unit to unload and organize her car and was then headed home to complete an "hour, hour and a half of paperwork, to enter the calls for the day." Although Leordeanu was a well-regarded employee, she had received an unfavorable report for her administrative "paperwork" tasks. Thus, she testified that she had a "serious deadline" that night because she was going out of town and needed to put her paperwork in the mail the next day so it would be received by her district manager on time: "I had to put that stuff in the mail to him that Friday. It had to be done." She recognized her performance on administrative tasks was "not where it should be," and that she had a deadline she had to meet.

After dinner, Leordeanu traveled from South Austin via Loop 360, a major artery, intending to exit at F.M. 2222. The route to the storage unit was also in the direction of her home. Before she reached the storage unit, and while she was still on Loop 360, Leordeanu suffered serious injuries in a car accident.

If facts raise the dual purpose doctrine for injury incurred during travel, the jury--as it was here--must be instructed as to the dual purpose rule. (1) Wausau Underwriters, 807 S.W.2d at 422-23; Texas Workers' Comp. Ins. Fund v. Bridwell, No. 14-02-00643-CV, 2003 Tex. App. LEXIS 9443 *6-7 (Tex. App.--Houston [14th Dist.] Nov. 6, 2003, no pet.) (mem. op., not designated for publication); Argonaut Southwest Ins. Co. v. Brewer, No. 09-93-005-CV, 1994 WL 312909 *4 (Tex. App.--Beaumont June 30, 1994, writ denied) (mem. op., not designated for publication). As the trial judge correctly recognized, the determination of whether the evidence adduced at trial establishes that an employee was in the course and scope of employment is a fact question for the jury. The jury answered this fact question in a general verdict, finding that Leordeanu was in the course and scope of her employment at the time she was injured. American Protection did not challenge the instruction, and the instruction is consistent with this court's analyses of the dual purpose rule as it applies in the context of the course and scope of employment. Nor is it disputed that the court's instruction to the jury provided an accurate statement of the law. If American Protection had desired findings other than the general verdict, it could have posed separate questions to the jury. See Tex. R. Civ. P. 278. It did not. The disputed question was whether the plaintiff was acting within the course and scope of employment; this was a question for the jury to which the parties sought a general verdict.

Just as driving in a company car festooned with a company logo does not necessarily bring the employee within coverage of the Act, neither does the fact that the employee will eventually end up at home at the close of day exclude him from coverage. If an employee is injured while running an errand for the employer either on the way to work or on the way home from work, the controlling issue remains whether the employee was in the course and scope of his employment. One court reasoned that the inquiry requires the fact finder to determine during which segment of the trip the injury occurred--the segment between the errand and work or the segment between the errand and home. St. Paul Fire & Marine Ins. Co. v. Confer, 956 S.W.2d 825, 830 (Tex. App.--San Antonio 1997, pet. denied). In its well-reasoned analysis of a case similar to this one, the San Antonio court of appeals upheld a jury verdict that an employee was in the course and scope of his employment when he had an accident that occurred while he was driving to a store for office supplies after which he would have driven home. As in this case, in Confer, the route home coincided with the route to the business errand. The majority does not distinguish Confer, but finds that it "departs" from the statute. I disagree.

The court in Confer parsed a difficult statute concluding that the "controlling issue should be whether the employee is traveling on behalf of his employer at the time of the accident, not on what road he happens to be traveling." Id. at 830. The court reasoned that the fact that the office supply store happened to be along the same route as the employee's route home "should be of little consequence." Id. at 829. Both Confer and Leordeanu were traveling on major highway arteries--Confer on Interstate Highway 35 and Leordeanu on Loop 360. As the Confer court correctly asked: "Why should the result be any different if [the office supply company] had been located somewhere off of Interstate 35, forcing Dr. Confer to travel away from his regular route?" There is no language in the statute suggesting that the legislature intended such a random factor to inform its statutory scheme. Nor can one assume that the fact that Leordeanu organized her sales travels and chores to eventually end up at home just off of Loop 360 would automatically exclude her from coverage.

By the majority's reasoning, Leordeanu was on a dual purpose trip that would exclude her from coverage when she left the doctor's office in Bastrop for the business dinner in Austin. Even though she was traveling from one business errand to another, and was clearly in the course and scope of employment, she was also traveling the same route that she would have to traverse to return to her home in Austin later that night even in the absence of a business purpose. Under the majority's erroneous application of the statute, this trip would be no different than her trip from the restaurant to the storage unit. Both the storage unit and restaurant were mere stops on a trip that would ultimately take her home. The issue is not whether she would end up at home at the end of her workday--most workers do. The issue is whether she was in the course and scope of her employment at the time of her accident.

The majority's reading makes it impossible for the statute to achieve its legislative purpose by extirpating its provisions for persons without a fixed workplace. The coming and going rule originates from the proposition that an injury occurring while using the public streets or highways in commuting to and from work is non-compensable because the employee is not exposed to any risk of the workplace that any other driver is not exposed to. A different situation is presented when an injury occurs as the result of travel pursuant to express or implied requirements of an employment contract. Jecker, 369 S.W.2d. at 778. The rationale for the exception is that since it is the employment that exposes the employee to the risks of the public streets and highways, his injuries arise from the employment. Id. Further, the statutory definition of course and scope of employment contemplates coverage for activities conducted on the work premises and "at other locations." Tex. Lab. Code Ann. § 401.011(12). When travel upon public roadways is an integral or necessary part of one's employment, and it is as much a part of one's work as the actual arrival at a workplace--or if there is no actual workplace other than a home office--travel is an element of the employment, and courts have held that such traveling is in the course and scope of employment. See, e.g., Jecker, 369 S.W.2d 776 (holding that salesman's death was compensable when he was in accident on return trip from a service call); Employee Cas. Co. v. Hutchinson, 814 S.W.2d 539 (Tex. App.--Austin 1991, no writ) (holding that dual purpose rule did not bar recovery for customer service employee killed in an accident on trip from family reunion to customer's home); Rose, 795 S.W.2d 210.

It would defeat the legislative scheme to simply label all travel in the direction of home as "inherently personal" and automatically exclude it from coverage under the dual purpose rule. Surely, a salesperson who organized his stops from the furthest stop to the closest one to home and began his work with the stop at the longest distance from home cannot be said to be excluded by the dual purpose rule as he works his way home.

This is not a typical commuter case. Leordeanu was a traveling sales representative who worked out of her car, storage unit and home office. Unlike the normal commuter who travels to and from a set place, or places, of employment, she was directed in her employment to travel from place to place within her designated territory on a daily basis. On the day of her injury she traveled to a health care provider's office in Austin, to offices in Bastrop, back to a restaurant in Austin, and was then injured in an accident as she drove towards her employer's storage unit after 9 p.m.

Leordeanu is not like a normal commuter, and was not injured as a consequence of a risk to which all traveling persons are exposed. Her accident arose out of the traveling nature of her employment. It arose from an activity that "originates in the work, business, trade, or profession of the employer and that is performed by an employee while engaged in or about the furtherance of the affairs or business of the employer." See Tex. Lab. Code Ann. § 401.011(12). More than sufficient evidence was provided at trial for the jury to find that, at the time of her accident, Leordeanu was traveling from a business dinner to a storage unit, and even then to her home office, for the sole purpose of furthering her employer's affairs.

The jury's finding, and the San Antonio court's holding in Confer, are in accord with Evans and other cases relied on by the majority. In Evans, the Texas Supreme Court held that an employee's death was not compensable when he was killed in an accident on his way to a pre-work safety meeting because he had not yet "begun work" and coverage was therefore barred under the coming and going rule. 790 S.W.2d at 305. The court stated, however, that the death would have been compensable if the accident had occurred between the safety meeting and the work site.

In Tramel, the Fort Worth court of appeals held that an injury was not compensable when the employee was injured during her regular trip to the bank on behalf of her employer before work. 830 S.W.2d at 757. The accident occurred on a point in the trip that she would have traveled on her way from home to either the bank or work. Id. Unlike the employees in both of these cases, Leordeanu was not merely driving to work at the time of her injury but was in fact in the course and scope of her employment as a traveling pharmaceutical sales representative. Once she began her work for the day, Leordeanu's situation became analogous to the Evans court's hypothetical in which the employee injury was compensable because it occurred during travel between the pre-work safety meeting and the work site. This case is even more compelling as Leordeanu operated out of her home office and her storage facility and drove a company car.

The facts of the present case are more like those in Meyer v. Western Fire Ins. Co., 425 S.W.2d 628, 629 (Tex. 1968), than Evans or Tramel. In Meyer, the Texas Supreme Court held that an employee's accident on the way to work was in the course and scope of employment when the employee had taken work-related phone calls from home before departing. Id. at 629. The employee was a service supervisor who worked partly at home, partly at his employer's office and partly in making service calls to homes built by his employer. Id. He drove his own vehicle and had discretion as to when he made his service calls. He was not required to stop by the office at any given time, but tried to stop by once a day to pick up messages. Id. The court framed the question whether he was already working at the time of the accident or whether he was merely on his way to work. Id. at 628. In determining whether his accident was in the course and scope of employment, the court reflected on the legislature's adoption of the "coming and going" and "dual purpose" rules:

[T]he Legislature surely did not intend to provide that an employee whose employment requires him to travel at his own expense in his own automobile on streets and highways, either constantly or intermittently, should be denied compensation if accidently injured while thus exposed to risks growing out of his employment. Any such holding would be wholly unjust to salesmen, servicemen, repairmen, deliverymen, and a host of others who may be required to use their own automobiles in their work, and would be a strict rather than a liberal interpretation of the Workmen's Compensation Act. Id. at 630 (quoting Jecker, 369 S.W.2d at 779). The court held that there was evidence that the employee was impliedly directed in his employment to travel to the office on the day of the accident and that the dual purpose rule did not bar him from recovering benefits. Id. at 630-31.

In a similar manner to the employee in Meyer, Leordeanu worked partly in making sales calls, partly out of her storage facility and partly at home. She had discretion as to when she would make her calls, and as the employee in Meyer did, she would visit the storage unit on a regular basis in the course of her duties. Unlike the employee in Meyer, Leordeanu was furnished with a company car she used to further her employer's affairs--making the case that her accident was in the course and scope of employment even more compelling. Leordeanu is precisely the kind of employee that the Jecker and Meyer courts warned would be unjustly denied recovery under a "strict rather than a liberal interpretation" of the statute. See id.

The majority is correct that the statute is semantically challenging. But the trial court gave a correct statement of the law in its instruction and identified the ultimate destination for the jury's journey. The jury accomplished the task it was asked to do. Because the evidence in this case, assessed under the appropriate standard, was clearly sufficient to support the jury's finding of course and scope of employment, I respectfully dissent.
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Pemberton and Waldrop
Filed: August 2, 2007

1. Where evidence of dual purposes existed and the court did not include a charge, it was reversed. See, e.g., Wausau Underwriters Ins. Co. v. Potter, 807 S.W.2d 419, 422-23 (Tex. App.--Beaumont 1991, writ denied). Despite the fact that this case may not raise the issue of dual purpose travel and require such a charge, the cautious trial court gave one.

Harris v. Tex. DFPS (Tex.App.-Austin, Jun. 15, 2007)

Harris v. Tex. Dep't of Fam. & Prot. Serv's (Tex.App.- Austin, Jun. 15, 2007)(Puryear)(termination of parental rights, SAPCR, managing conservator)
REVERSED AND RENDERED: Opinion by Justice Puryear
Dissent by Justice Patterson
Before Chief Justice Law, Justices Patterson and Puryear

Ramona Harris v. Texas Department of Family and Protective Services
Appeal from 207th District Court of Hays County

FROM THE DISTRICT COURT OF HAYS COUNTY, 207TH JUDICIAL DISTRICT
NO. 00-0684-A, HONORABLE DONALD V. HAMMOND, JUDGE PRESIDING

MAJORITY OPINION BY JUSTICE PURYEAR

Appellant Ramona Harris gave birth to C.C.H. on February 3, 2001. The Texas Department of Family and Protective Services first got involved with Harris in late 1999 and removed her three older children from her care in 2000. When C.C.H. was born, the Department immediately took custody of him and placed him in foster care with his older siblings. (1) The cause was submitted to a jury in October 2004, and the jury returned a verdict finding that Harris's parental rights to C.C.H. should not be terminated and that she should be named his managing conservator. The Department filed a motion for new trial, arguing that the jury's finding on conservatorship was against the great weight and preponderance of the evidence, manifestly unjust, and not in C.C.H.'s best interest. The child's attorney ad litem filed a motion asking the court to designate the Department as C.C.H.'s managing conservator.

Seven months later, in early April 2005, the trial court signed an order in accordance with the jury's finding that Harris's parental rights should not be terminated. However, the court went on to state that the jury's finding that Harris should be appointed managing conservator was "against the greater weight and degree of the credible evidence" and not in the child's best interest. The court named the Department as C.C.H.'s sole managing conservator and Harris as possessory conservator, with "supervised visitation . . . as has been in effect in the past." It is from this order that Harris appeals. She argues that the trial court erred in disregarding the jury's finding that she should be appointed C.C.H.'s managing conservator. She further argues that the trial court's judgment (1) did not make the findings necessary to name the Department as C.C.H.'s managing conservator, (2) granted relief not requested by the Department, and (3) did not grant relief that was in the child's best interest. We reverse the trial court's order.

Which statutes apply?

The cause before us involves the interaction of several sections of chapter 5 of the family code, including sections 105.002, 161.205, and 263.404. We must therefore determine how these statutes should be interpreted and applied and whether they can coexist or are in conflict. Harris argues that section 105.002 of the family code prohibited the trial court from disregarding the jury's finding as to conservatorship. See Tex. Fam. Code Ann. § 105.002 (West Supp. 2006). The Department, on the other hand, argues that the trial court did not err in entering its order, relying on section 161.205 of the family code, which it argues is a more specific statute that should control over section 105.002. See id. § 161.205 (West 2002).
Section 105.002 provides that in most suits affecting a parent-child relationship, (1) a party is entitled to a jury trial, and (2) the trial court may not contravene the jury's verdict on the appointment of managing or possessory conservators. Id. § 105.002(a), (c). In determining issues of conservatorship and possession of a child, the child's best interest must be the trial court's primary consideration. See id. § 153.002 (West 2002). There is a strong presumption that a parent should be appointed managing conservator unless that appointment is not in the child's best interest and would significantly impair the child's physical health or emotional development. Id. § 153.131(a) (West 2002); Lewelling v. Lewelling, 796 S.W.2d 164, 166-67 (Tex. 1990). Under chapter 161, which governs suits seeking to terminate a parent's relationship with her child, see Tex. Fam. Code. Ann. §§ 161.001-.211 (West 2002 & Supp. 2006), if a trial court does not terminate a parent's rights, it shall either deny the petition or "render any order in the best interest of the child." Id. § 161.205. The Department contends that section 161.205 authorized the trial court to disregard the jury's findings as to conservatorship and appoint the Department as managing conservator. We disagree.

When a child has been taken into the Department's care, the trial court must conduct periodic hearings to review conservatorship and a parent's attempts to regain custody of her child. See id. §§ 263.001-.503 (West 2002 & Supp. 2006). Under chapter 263, a trial court must render a final order within eighteen months of the Department's appointment as temporary managing conservator. (2) Id. § 263.401(a), (b) (West Supp. 2006). A final order is one that orders the child returned to the parent, terminates the parent-child relationship, names a relative or other person as the child's managing conservator, or appoints the Department managing conservator without terminating the parent's rights. Id. § 263.401(d). Section 263.404 allows a trial court to render a final order that does not terminate a parent's rights yet names the Department as managing conservator if the court finds (1) that the appointment of the parent as managing conservator would not be in the child's best interest because it would significantly impair the child's physical or emotional well-being and (2) that it is not in the child's best interest to appoint a relative or another person as the child's managing conservator. Id. § 263.404(a) (West 2002). In making that decision, the trial court should consider the child's age, needs, and desires, whether a child twelve or older has expressed strong feelings against termination or being adopted, and any special needs that would reduce the child's chances of being adopted. Id. § 263.404(b).

In construing a statute, we look to the legislature's intent, first examining the plain language used. Lenz v. Lenz, 79 S.W.3d 10, 19 (Tex. 2002). The legislature enacted section 105.002 as part of subtitle A, "General Provisions," which governs all suits affecting the parent-child relationship. Contrary to the Department's contention, Texas courts have considered section 105.002 in several contexts, including termination, and have applied it in conjunction with statutes governing termination suits. See Taylor v. Texas Dep't of Protective & Regulatory Servs., 160 S.W.3d 641, 653-54 (Tex. App.--Austin 2005, pet. denied) (section 105.002 applied in suit in which parents' rights were terminated and grandmother sought conservatorship); Corrales v. Department of Family & Protective Servs., 155 S.W.3d 478, 488 (Tex. App.--El Paso 2004, no pet.) (section 161.207, which requires appointment of managing conservator after parental rights are terminated, "must be read in conjunction with Section 105.002," and court "may not contravene a jury verdict concerning the appointment of a sole managing conservator"); In re Rodriguez, 940 S.W.2d 265, 271 (Tex. App.--San Antonio 1997, writ denied) (applying section 105.002 in suit asking whether father or guardian should be appointed managing conservator); see also Lenz, 79 S.W.3d at 13, 19-20 (applying section 105.002 to order imposing geographical limitation on children's residence).

The jury found, and the trial court entered judgment in conformity with that finding, that Harris's parental rights to C.C.H. should not be terminated. Once that decision was made, the only issue that remained was who should be named as managing conservator of C.C.H. A trial court that does not terminate a parent's rights in a termination suit must either dismiss the petition or enter an order in the child's best interest. Tex. Fam. Code Ann. § 161.205. In making its orders, the trial court may not contravene the jury's determination of conservatorship unless the jury's findings are not supported by the evidence. Lenz, 79 S.W.3d at 20 ("because we have concluded that there is legally sufficient evidence to support the jury's verdict in this case, we further conclude that the trial court improperly contravened the jury's verdict by imposing a geographical restriction on the boys' primary residence"); Taylor, 160 S.W.3d at 653-54; Rodriguez, 940 S.W.2d at 271; see also Corrales, 155 S.W.3d at 488 (court may not contravene jury verdict on sole managing conservator, and conservatorship decision is reviewed not for abuse of discretion but under traditional sufficiency standards); In re W.H.M., No. 01-00-01396-CV, 2003 Tex. App. LEXIS 8548, at *19-23 (Tex. App.--Houston [1st Dist.] Oct. 2, 2003, pet. denied) (mem. op.) (holding that "jury's findings regarding . . . managing or possessory conservatorship had to be supported by a preponderance of the evidence," citing family code section 105.005, and noting that jury's custody determination is binding on trial court if supported by evidence); Brunson v. Brunson, 502 S.W.2d 578, 579 (Tex. Civ. App.--Fort Worth 1973, no writ) (applying predecessor to section 105.002 and holding that "in order for the jury verdict to be binding upon the court it must be supported by evidence of probative force"). We must conduct a traditional sufficiency review to determine whether the trial court erred in contravening the jury's conservatorship determination. See Lenz, 79 S.W.3d at 19-20; Brunson, 502 S.W.2d at 579-80.

Harris is attacking the trial court's disregard of a jury's finding in her favor on an issue on which the Department had the burden of proof. See In re W.G.W., 812 S.W.2d 409, 413 (Tex. App.--Houston [1st Dist.] 1991, no writ) (party seeking to bar natural parent from appointment as managing conservator must show that child's best interest "would be best served by the appointment of a non-parent"). Therefore, we ask whether there was legally sufficient evidence to support the jury's finding; if there was legally sufficient evidence, the trial court erred in contravening the jury's finding. See Lenz, 79 S.W.3d at 19-20; Brunson, 502 S.W.2d at 579; see also John Paul Mitchell Sys. v. Randall's Food Markets, Inc., 17 S.W.3d 721, 728 (Tex. App.--Austin 2000, pet. denied) ("We will uphold a trial court's judgment notwithstanding the verdict only if we determine that there is no evidence to support the jury's findings."). We view the evidence in the light most favorable to the jury's finding, indulging every reasonable inference that supports the finding, crediting favorable evidence if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. City of Keller v. Wilson, 168 S.W.3d 802, 807, 821-22 (Tex. 2005). If reasonable jurors could differ in their conclusions, we may not substitute our judgment for the jury's, and we must defer to the jury's determinations of the credibility of the witnesses, the weight to be given the testimony, and the resolution of evidentiary conflicts. Id. at 819-20, 822. In other words, the trial court could have contravened the verdict only if a reasonable fact-finder could not have resolved the factual disputes in favor of the verdict. See id. at 823 ("Judgment without or against a jury verdict is proper at any course of the proceedings only when the law does not allow reasonable jurors to decide otherwise."). Finally, in conducting our review, we must keep in mind the rebuttable statutory presumption that it is in a child's best interest for his parent, rather than a non-parent, to be appointed managing conservator. Tex. Fam. Code Ann. § 153.131; Lewelling, 796 S.W.2d at 166-67.

Sufficiency of the evidence supporting the jury's finding

C.C.H. was born on February 3, 2001. At the time he was born, the Department had been involved with Harris and her three older children through referrals dating back to late 1999. In mid-2000, the Department removed the three older children from Harris's care, and her parental rights to those children were terminated in October 2001. See Harris v. Texas Dep't of Protective & Regulatory Servs., No. 03-01-00643-CV, 2003 Tex. App. LEXIS 2842, at *1 (Tex. App.--Austin Apr. 3, 2003, no pet.) (memo. op.). C.C.H. was removed from Harris's care immediately after he was born and placed in the same foster home as his older siblings. When Harris's rights to her older children were terminated, the Department was named temporary managing conservator; the trial court did not name Harris as his possessory conservator. Although Harris requested visitation several times, the Department denied her requests because she was not a possessory conservator. (3) At the time of trial in October 2004, Harris had been allowed to visit C.C.H. three times.

Most of the Department's evidence related to her behavior with her older children because the Department had removed C.C.H. from Harris's custody shortly after his birth and limited her contact with him during the pendency of this suit. (4) Harris was referred to the Department in 1999, when her older daughter made an outcry that she had been sexually abused by Harris's boyfriend. Harris initially disbelieved her daughter but later acknowledged the abuse. The boyfriend later pled guilty to the charge and was sentenced to prison. Although she agreed not to allow the boyfriend who abused her daughter to have contact with the children, Harris brought the children with her to prison to visit and possibly confront him about the abuse. In May 2000, another referral was made, alleging that Harris was frequenting a "crack house," exposing her children to that dangerous environment, spending time with another known sex offender, and allowing him contact with her children. The Department took custody of the three older children at this point and later proceeded to seek the termination of her parental rights.
At trial, Department caseworkers testified that in their dealings with her related to her older children, she was uncooperative and confrontational. The Department initially attempted to allow Harris visits with her older children twice a month, but caseworkers testified that Harris did not cooperate, sometimes refused to attend visitations unless all three children would be there, and once left a visit early because she believed her rights were being violated. However, Harris had also completed many of the court-ordered requirements, including two parenting classes, a drug and alcohol screening, and a psychological assessment, and attended Alcoholics Anonymous meetings.

Caseworkers testified that Harris sometimes refused Department requests for drug testing, once tested positive for marihuana, (5) and admitted to smoking marihuana that one time; Harris and C.C.H. tested negative for illegal substances when C.C.H. was born. Caseworker Leslie Ontiveros testified that in May 2000, the police told her that Harris had gone to a "known crack house" and had brought her children to a house where a sex offender named Elvis Harris lived. Ontiveros believed that Elvis Harris, who was deceased at the time of trial, was related to Harris's husband's family, although Harris, her husband, and her father-in-law denied this. Although Elvis Harris was characterized as a known sex offender, Ontiveros admitted that his conviction "may have" occurred after Harris's children were removed, and Harris introduced records showing that Elvis Harris was convicted in 2002, three years after the Department alleged endangerment because Harris had "exposed" her children to him and one year after her rights to her older children were terminated.

Scott Johnson, a San Marcos police detective, testified that he met Harris and her children in late 1999, after Harris's daughter made her outcry. He also dealt with Harris more recently, when the Department removed N.H. He said that he saw no signs that Harris had neglected or injured her children. He said that N.H. was clean and that Harris's house was "fairly well kept," although it looked like Harris was packing to move. Gayle Michalek, a licensed professional counselor who worked with Harris from August to December 2000, testified that Harris admitted to substance abuse starting in high school, but denied any recent use. (6) She also testified that Harris attended AA or NA meetings about three times a month.

Chris Farrell, another of Harris's therapists, met with her in February, March, and April 2001, starting very shortly after C.C.H. was born and removed from her care. Farrell testified that Harris told him that her mother was a drug addict when Harris was a child and that Harris had been in foster care when she was young. He testified that she was very angry, expressed violent thoughts toward the Department, and believed she was being persecuted by the Department. During their sessions, Farrell attempted to point out that Harris's anger and attitude toward the Department were not helping her regain custody of her children. Farrell thought he was building rapport and making progress with Harris, but after six sessions, she got angry and left when he
ran late with another client and never returned.

Farrell testified that Harris, who was working in a nursing home at the time, related a conversation she had with the daughter of a patient. The woman was angry and threatening, and Harris responded by reminding the woman "that her mother was in [Harris's] care." Farrell took this remark to mean that Harris was saying that "she could have hurt the woman's mother in retaliation for this woman calling [Harris] and threatening her." Harris then made what Farrell took to be similar threats towards Department caseworkers, saying they should hope never to be in a nursing home where Harris worked. Farrell said he was "shocked" to hear that level of anger and violence, saying that he was accustomed to clients being angry and venting about the Department with general remarks such as, "I'm so angry I could kill them." Farris, however, felt that Harris's remarks were very specific and showed him that Harris "was thinking in her mind about how she could hurt this woman's mother." Farrell believed Harris was "very angry" and violent, made poor choices for which she did not take responsibility, blamed others for her problems, and "retaliate[d] against others when they fail to conform to her wishes and desires." Farrell testified that during their fourth session he told Harris that he could be "subpoenaed to testify against her and use whatever confidential information she gave [him] against her."

Sherryl Boyd, the court-appointed special advocate for C.C.H., testified that he was happy and safe in his foster home with his siblings. She testified that he had not known any other home since his birth almost four years earlier. She also testified about some of the negative things the older children told her about living with Harris and said that the children told her that Harris was neglectful and violent and used drugs in front of them. C.C.H.'s foster mother, who with her husband has adopted the older three children, testified that C.C.H. was doing well in their home and was very attached to his oldest brother. She believed it was in his best interest to terminate Harris's rights so that he could be adopted into their family.

Cleiffort Cooks-Harris, Harris's estranged husband, denied that he or Harris used drugs or abused C.C.H. or N.H., their youngest son, and he felt that the Department was harassing him and Harris. (7) Cooks-Harris, who is African-American, testified that the Department got involved in his life only after he married Harris, who is Caucasian. At the time of trial, Cooks-Harris was in jail for violating Harris's protective order against him, which he thought had been removed, when he took care of N.H. in Harris's home while Harris worked. The protective order provided Cooks-Harris with visitation rights to N.H. and allowed Cooks-Harris and Harris to agree to additional visitation. However, the order bars Cooks-Harris from entering Harris's home; visitation must take place at another location. Cooks-Harris testified that Elvis Harris was not a relative, that Elvis's brother was married to one of Cooks-Harris's cousins, and that he never knew Elvis had been convicted of a sex crime. Cooks-Harris's father testified that he did not think Harris or his son used drugs. He also testified that the alleged crack house was instead a relative's home and that he never knew that Elvis Harris was a sex offender.

Harris's mother, Karen Bryant, testified that Harris had attended AA and NA meetings, got an AA sponsor, and did not abuse drugs or alcohol. She denied many of the Department's allegations, including allegations that she herself was a drug addict. Bryant denied any drug use and testified that her mother, Harris's grand-mother, was an alcoholic and drug abuser and that Bryant herself was very opposed to drug use. She believed Harris was a good mother who tended to spoil her children but never neglected or abused them. She testified that she thought it was in C.C.H.'s best interest for him to be raised by Harris. Karen Rust, Harris's employer, testified that Harris had worked for her for more than two and one-half years, providing in-home care for elderly and disabled patients. She said that Harris was an excellent and professional care giver and that she had never received any complaints about Harris or reports that Harris had threatened a patient. Rust testified that Harris had described her dealings with the Department and told Rust that she thought the Department was "being overly aggressive and unfair." One of Harris's neighbors testified that he never saw any evidence of drug use by Harris or Cooks-Harris or any signs that N.H. was abused or neglected.

Taylor Skaar, a domestic violence counselor at a women's shelter, testified that Harris used the shelter "as a place to get help." Skaar said Harris had the paperwork to initiate a divorce and talked about taking N.H. and moving to get away from both Cooks-Harris and the Department but was also conflicted about whether to reconcile with her husband and abandon the protective order against him. Skaar did not find Harris to be delusional or paranoid and said Harris was angry and believed she was being abused by the Department. Skaar thought Harris struggled with "being poor, not having money, not having a support system, and still being required to take care of her child and to earn money." Skaar heard similar complaints from other women about the Department's requirements. Skaar had never viewed Harris as violent and could not imagine her threatening to harm anyone. She had seen Harris angry but never aggressive or "explosively" angry. Skaar testified that Harris did not direct her anger at her children or Skaar, but instead at the Department and the situation in which she felt trapped. Skaar testified that she never saw any signs that N.H. was abused or neglected, saying, "One thing I know for sure is that Ramona really cares about her child."

Harris testified and denied most of the Department's charges leveled against her in this and the earlier termination proceeding. (8) She admitted that when her daughter made her outcry of abuse by Harris's former boyfriend, Harris initially doubted the accusation because she thought her daughter, who was not always honest and was a "daddy's girl," was trying to drive Harris back to her ex-husband. She later came to believe the outcry and recognized that bringing her children to see the abusive boyfriend in jail was a poor choice. She testified that although she learned later that her boyfriend was on probation for robbery, she did not know that at the time. Harris denied telling Farrell that her mother was a drug addict. She further denied using crack cocaine but admitted to smoking marihuana once shortly after her daughter's outcry and her children's removal. She denied bringing her children to a crack house and testified that the alleged crack house was actually the home of Cooks-Harris's uncle where the Harris family socialized, and she, Cooks-Harris, and Cooks-Harris's father testified that the uncle was neither a drug dealer nor user. (9) She denied threatening anyone and said that her remark to Farrell meant that she thought the Department staffers should "remember the golden rule" and should be nice to people because "one day they might need you, and you might treat them the same way that they're treating you." She also said that Farrell told her that "it was best for [her] to just quit and give [her] children away"; after that remark, she felt he was not working for or helping her. She denied refusing to visit her children and said she "might have been late for a visit." Harris had worked for the same care-giver agency for several years and made between $15,000 and $19,000 a year.

Harris testified that she attempted to vacate the protective order because she needed Cooks-Harris's help to babysit for N.H. She called the assistant district attorney who had helped her obtain the protective order and was told that the attorney "would look into it," which she thought meant the protective order would be dropped. She stated that she obtained the protective order after a fight with Cooks-Harris, but denied alleging that he had physically abused her. She said she called the police out of anger but then realized that the Department would try to take N.H. away from her. She said she went to the shelter for safety from the State, not from Cooks-Harris. She said she had filed for divorce from Cooks-Harris and although "to a degree" she was "wanting to reconcile," she and Cooks-Harris both testified that they intended to go through with the divorce. Harris also denied that she had "subjected" her children to a known sex offender. She testified that in 1999, when she heard that Elvis Harris might be a sex offender, she went to the Sheriff's Office to inquire, and was told that he was not included in the sex offender registry. Harris introduced evidence showing that not until 2002, well after her inquiry, was Elvis Harris convicted of a sex offense.

In determining the placement of a child, the child's best interest is the primary consideration. Tex. Fam. Code Ann. § 153.002; Doyle v. Doyle, 955 S.W.2d 478, 479 (Tex. App.--Austin 1997, no pet.). In making that determination, the fact-finder is to consider the following factors: the child's desires, the child's present and future emotional and physical needs, emotional and physical danger posed to the child now and in the future, the parenting abilities of the individuals seeking custody, programs available to assist the would-be parents, the individuals' or agency's plans for the child, the stability of the proposed homes, any acts or omissions by the parent that might show an improper parent-child relationship, and any excuse for such acts or omissions. Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976).

Most of the Department's evidence related to Harris's behavior with her older children, and the jury could have determined that leaving C.C.H. in the Department's care would be in C.C.H.'s best interests. However, the jury did not make that finding. Instead, it found that naming Harris as managing conservator would best serve the child's interests. That decision only needed to be, and was, supported by legally sufficient evidence.

It was not the trial court's role to re-weigh the evidence; the court was instead limited to ensuring that some credible evidence supported the jury's findings. See Tex. Fam. Code Ann. § 105.002(c)(1). Aside from stating that the jury's finding in favor of Harris was "against the greater weight and degree of the credible evidence," however, the trial court made no findings of fact and provided no details of the manner in which the jury's finding was unreasonable or unsupported by legally sufficient evidence. Nor did the court find that naming Harris as managing conservator would significantly impair C.C.H.'s physical or emotional well-being. See id. § 263.404(a)(1). Further, the trial court was not empowered to disregard the jury's verdict merely based on factual sufficiency; the court could only controvert the verdict if it found the verdict was not supported by legally sufficient evidence. See Tex. Fam. Code Ann. § 105.002(c); Lenz, 79 S.W.3d at 19-20. However, by its finding that the jury's verdict was "against the greater weight and degree of the credible evidence," the trial court made a finding that the verdict was against the preponderance of the evidence. See, e.g., Columbia Rio Grande Reg'l Healthcare, L.P. v. Hawley, 188 S.W.3d 838, 864 n.4 (Tex. App.--Corpus Christi 2006, pet. filed) ("preponderance of the evidence" is defined in Comm. on Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges: Malpractice, Premises, & Products PJC 40.3 (2003), as "the greater weight and degree of credible evidence"). Thus, the trial court made it clear that it conducted a factual-sufficiency review, not a legal-sufficiency review. See Long v. Long, No. 08-05-00250-CV, 2007 Tex. App. LEXIS 1111, at *6 (Tex. App.--El Paso Feb. 15, 2007, no pet. h.) (to establish error, wife "must challenge that the characterization is against the great weight and preponderance of the evidence [a factual sufficiency complaint] or that separate property status was established as a matter of law [a legal sufficiency complaint]"). This overstepped the trial court's proper role in reviewing the jury's verdict.

Harris has had stable employment for a significant period of time. She denied using crack cocaine, one of the allegations frequently leveled against her by the Department, had never tested positive for cocaine, and produced testimony by several witnesses that they had never seen her using cocaine or acting as if she were under the influence of an illegal drug. Harris produced testimony that when N.H. was in her care, he was well cared for and not neglected or abused. Although it is true that C.C.H. has been in his foster home since his birth and has not had visitation with Harris, it was the Department's decision to deny all visitation that resulted in the lack of contact between C.C.H. and his mother. There was no evidence of any improper behavior by Harris directed at or related to C.C.H., and Harris and her witnesses denied most of the Department's allegations related to her older children. It was for the jury, as sole judge of the credibility of the witnesses, to weigh the credibility, decide any evidentiary conflicts, and determine the weight to be given the evidence. See City of Keller, 168 S.W.3d at 819-20. When the jury examined the evidence, it was obligated to consider the rebuttable presumption that C.C.H.'s best interest would be served by allowing Harris, his natural parent, to raise him. See Tex. Fam. Code Ann. § 153.131; Lewelling, 796 S.W.2d at 167 ("It is no longer adequate to offer evidence that the nonparent would be a better custodian of the child."). We cannot hold that the jury acted unreasonably in reaching its factual determinations. See City of Keller, 168 S.W.3d at 819-20, 822-23.

Certainly this is a difficult case with no easy answers. C.C.H. has been in a comfortable home with his siblings since birth. However, he has also been denied contact with his natural parent since October 2001, and this lack of contact is a result of Department decisions, not Harris's decisions or conduct since the October 2001 trial or any indifference on her part. See Lewelling, 796 S.W.2d at 168 n.9. We agree with the dissent that the evidence related to C.C.H.'s best interest "was sparse," but this is in part due to the Department's decision to deny Harris any contact with him since October 2001. Further, it was misconduct by Department witnesses that caused the first trial of this case to end in a mistrial, which has extended the delay in resolving this matter. (10) Harris may be difficult for the Department to work with but that cannot be grounds for cutting off contact between a child and his natural parent whose rights have not been terminated.

The dissent spends a great deal of time discussing the evidence that would support a finding of termination and the standards and statutes that apply to a finding of termination. However, in this case, the jury found and the trial court agreed that Harris's parental rights should not be terminated. We must ask only whether there was any evidence on which the jury could base its decision to award managing conservatorship to Harris, but instead, the dissent conducts a result-oriented inquiry, bending the standards of review in order to reach a decision more palatable to the dissent. (11) We may not act in such a result-oriented manner and instead must conform our inquiry to the standards set out in the family code and by the supreme court. We may not substitute our judgment for that of the jury on matters of evidentiary conflict and must apply the law the same in this case as we would in any other.

Finally, we take great issue with the dissent's assertion that because Harris's rights to her older children were terminated, the "undisputed evidence" (12) "conclusively establishes a ground for termination that supports the trial court's disregard of the jury finding." The dissent goes on to say that "[b]ecause this evidence also constitutes undisputed evidence that Harris's parental relationship endangered the safety of her children and that termination was in their best interest, it is conclusive as well on the finding of best interest as it relates to the issue of C.C.H.'s conservatorship." (Citations omitted.) The dissent's approach would mean that once a parent commits an act permitting termination, there is no need to conduct further inquiry into best interest, something section 161.001(2) specifically requires. Further, this would mean that if a parent ever has his or her parental rights terminated, even if it occurred ten years earlier or was based on false testimony, that parent's parental rights to other children could be terminated without any factual inquiry at all. Even if his or her rights were not terminated, the parent could never hope to regain conservatorship. This misguided approach would drastically alter the termination statutes' provisions and would shift the burden of proof to parents defending themselves against termination cases, rather than requiring the State to show by clear and convincing evidence both grounds for termination and the child's best interest. See Tex. Fam. Code Ann. § 161.001 (West Supp. 2006); In re C.H., 89 S.W.3d 17, 23 (Tex. 2002).

Conclusion

Because legally sufficient evidence supported the jury's finding that it was in C.C.H.'s best interest for Harris to be named sole managing conservator, the trial court erred in contravening that finding and instead naming the Department as managing conservator. We reverse the trial court's order and render judgment in conformity with the jury's finding that Harris should be named C.C.H.'s managing conservator.
__________________________________________
David Puryear, Justice
Before Chief Justice Law, Justices Patterson and Puryear;
Dissenting Opinion by Justice Patterson
Reversed and Rendered
Filed: June 15, 2007

1. Harris's parental rights to her older children were terminated in an earlier proceeding. See Harris v. Texas Dep't of Protective & Regulatory Servs., No. 03-01-00643-CV, 2003 Tex. App. LEXIS 2842, at *1 (Tex. App.--Austin Apr. 3, 2003, no pet.) (memo. op.). The Department first sought to terminate Harris's rights to C.C.H. in that proceeding but could not yet establish grounds for termination as to C.C.H. See Tex. Fam. Code Ann. § 161.001 (West Supp. 2006) (grounds for termination). The trial court's decree terminated Harris's rights to her older children and appointed the Department as C.C.H.'s managing conservator. The older children have been adopted by their foster parents, the same parents fostering C.C.H. Harris also has one younger child, N.H., who was removed from her care by the Department shortly before this trial but was not part of this proceeding.

2. An earlier trial on the termination of Harris's rights to C.C.H. ended in a mistrial, and as a result, these proceedings extended past the eighteen-month deadline for a termination suit. See Tex. Fam. Code Ann. § 263.401 (West Supp. 2006). Shortly before trial, Harris filed a motion to dismiss the termination suit for lack of jurisdiction "as provided for by Chapter 263 of the Texas Family Code." The trial court denied the motion, and Harris does not discuss this issue on
appeal.

3. The dissent states that "[f]or reasons not in the record, Harris was generally denied visitation." This is incorrect. The record reflects that Harris had a few visits with C.C.H. before the termination trial related to the older children, but after that trial, the trial court entered a final order terminating Harris's rights to her older children and appointing the Department C.C.H.'s managing conservator. Because the order did not appoint Harris as possessory conservator, the Department refused to allow her visitation from that point on. Former Department caseworker Kellie Ragland testified to that effect, and the record includes a letter to
Harris from Ragland dated October 21, 2002, in which Ragland stated that Harris was not entitled to visitation with C.C.H. and that visitation would be "disruptive to his schedule as well as his caregivers['] schedule" and "emotionally problematic" for him.

4. The dissent seems to believe that by making this observation, we somehow are devaluing or disregarding the evidence related to Harris's interactions and treatment of her older children. This is not the case. We agree that Harris's conduct related to the older children is relevant in this cause. See In re S.F., 32 S.W.3d 318, 322 (Tex. App.--San Antonio 2000, no pet.). We simply make this observation to place the evidence in context.

5. Caseworker Leslie Ontiveros testified that Harris tested positive for marihuana once, but Kellie Ragland testified that she "believed" Harris had tested positive two or three times. However, Ragland did not have any records to show more than one positive test, and she testified that she would not be surprised if Ontiveros testified that there was only one positive test. Harris denied any positive tests other than the one test after she admitted to smoking a marihuana cigarette shortly after she learned of her daughter's outcry and her three older children were removed.

6. Both Farrell and Michalek testified that Harris admitted to drug abuse in the past, but neither stated that she admitted to recent drug use. Michalek testified to the contrary, stating that Harris denied any recent drug abuse.

7. The Department took custody of N.H. at some point, but the record is somewhat unclear as to exactly when that occurred. Caseworker Rodrigo Gonzales testified that the Department attempted to remove N.H. in 2002 but that the trial court found that the Department did not have grounds to remove the child. He also testified that in 2003 he responded to a report that N.H. had been slightly injured in a fight between Harris and Cooks-Harris (he was struck by a telephone cord when Cooks-Harris pulled the phone away from Harris), but that neglectful supervision referral was "ruled out" because Harris had taken N.H. and gone to a women's shelter and was properly protecting N.H. After that incident, Harris sent Gonzales a copy of the protective order she obtained against Cooks-Harris and a copy of a medical report showing that she brought N.H. to a doctor to be sure he was alright. The Department removed N.H. again three weeks before trial, presumably because Harris had allowed Cooks-Harris to babysit N.H. in Harris's home, in violation of the protective order. The record is unclear whether, at the time of trial, a termination action had been filed or whether N.H. was in the custody of Harris or the Department.

8. The dissent states that Harris did not controvert the final order of termination related to her older children. However, Harris denied most of the Department's allegations and testified that she was not a drug addict, had not knowingly exposed her children to a sex offender, and had attempted to comply with the Department's reunification plan.

9. Ragland testified that the Department did not do any investigation of whether the house was actually a "crack house" and that she did not know whether the police ever raided the house.

10. The record reflects that during the first trial of this issue, one of the Department's witnesses broke rule 267 of the rules of civil procedure by talking to Department witnesses who had not
yet testified. As a result, the trial court declared a mistrial.

11. The dissent agrees that we must review the evidence under a legal-sufficiency standard but then goes on to conduct a factual-sufficiency review. The dissent states that "even when considered in the light most favorable to Harris, the evidence supports the trial court's presumed finding." (Emphasis added.) Thus, the dissent makes it clear that its primary approach is not to view the evidence as required but instead to re-weigh the evidence in a light favorable to the trial court, not the jury's verdict. The dissent states that "[w]e may not allow a determination of the best interest of the child to turn on personal preferences, speculative concepts of proper child rearing, or who 'deserves' the child," but this is exactly the kind of analysis the dissent then employs, showing its disfavor for Harris, her lifestyle, and her attitude toward the Department.

12. Although it is undisputed that Harris's parental rights to her three older children were terminated, Harris and her witnesses testified in opposition of much of the Department's evidence and allegations supporting the termination of her older children.