      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-09-00142-CV



                                    Shawna Loehr, Appellant

                                                 v.

                 Texas Department of Family & Protective Services, Appellee


               FROM THE COUNTY COURT AT LAW OF BASTROP COUNTY
              NO. 08-12,319, HONORABLE BENTON ESKEW, JUDGE PRESIDING



                            MEMORANDUM OPINION


                Following a jury trial, the trial court rendered a final order terminating

Shawna Loehr’s parental rights to her minor children and awarding sole managing conservatorship

to the Department of Family & Protective Services (the Department). Loehr timely filed a statement

of points for appeal, see Tex. Fam. Code Ann. § 263.405(b)(2) (West Supp. 2005), a motion for

new trial, see id. § 263.405(b)(1), and an affidavit of indigence. See Tex. Civ. Prac. & Rem. Code

Ann. § 13.003 (West 2002); Tex. Fam. Code Ann. § 263.405(e); Tex. R. App. P. 20.1. Loehr also

filed a notice of appeal from the termination order, which we docketed under Cause No. 03-09-

00141-CV (the “main appeal”).1 The “thirty-day hearing” required by section 263.405(d) of the

family code was held,2 after which the trial court signed an order finding Loehr indigent,3 denying

       1
           The main appeal remains pending.
       2
         The reporter’s record reflects that an oral hearing was held on March 3, 2009. At the
conclusion of that proceeding, the trial court requested additional briefing on two of Loehr’s points
her motion for new trial, and finding that each of Loehr’s points for appeal was frivolous. The latter

ruling has the effect of denying Loehr a free record in her main appeal. See Tex. Civ. Prac. & Rem.

Code Ann. § 13.003; Tex. Fam. Code Ann. § 263.405(d)(3) (West 2008).

                  In this cause, Loehr appeals the trial court’s order finding her appeal frivolous. See

Tex. Fam. Code Ann. § 263.405(g). She has been afforded, without advance payment of costs,

a reporter’s record of the thirty-day hearing and pertinent portions of the clerk’s record, and

both Loehr and the Department have filed briefs on the frivolousness issue. See id. Loehr brings

two issues. In her first issue, Loehr argues that she should be entitled to a free record in her main

appeal, notwithstanding the limitations of family code section 263.405. She similarly asserts that,

once this record is obtained, her newly appointed appellate counsel should be permitted to pursue

any additional appellate issues he identifies and should not be limited to those presented in her

section 263.405(b)(2) appeal points, which were filed by Loehr’s trial counsel. See id. § 263.405(i).

In her second issue, Loehr asserts that the trial court abused its discretion in finding her appeal to be

frivolous. Because the record in this proceeding reflects that the trial court abused its discretion in

finding at least one of Loehr’s appeal points frivolous, we sustain Loehr’s second issue and reverse

the trial court’s order.

                  Loehr filed six points in her statement of points for appeal. We need only address

her first:




for appeal that we do not reach here. The briefs were filed on March 9. The trial court’s order later
reflected that the hearing was held “[o]n March 3, 2009, through March 10, 2009.”
        3
             Loehr’s indigence was not contested.

                                                    2
        The Texas Department of Family Protective Services (Department) made an
        improper and prejudicial jury argument. Specifically, the Petitioner introduced
        evidence over objection that pertained to an alleged sexual abuse incident between
        the Respondent Mother and her younger brother at least a decade before the alleged
        events Petitioner pled in the Affidavit attached to the Original Petition as reasons for
        removal; further Respondent Mother was not alleged to have conducted sexual abuse
        against her children. The inclusion of such an allegation had a prejudicial impact
        which far outweighed any probative value.[4]


Loehr presented a substantively identical ground in her new trial motion.5

                 We construe Loehr’s point to fairly encompass two specific complaints: (1) that

the trial court erred in admitting evidence “that pertained to an alleged sexual abuse incident

between the Respondent Mother and her younger brother at least a decade before”; and (2) that the

Department later made “an improper and prejudicial jury argument” concerning that alleged abuse.



        4
            Loehr’s second through sixth points asserted: (2) error relating to testimony presented
by the executive director of Court Appointed Special Advocates (CASA) of Bastrop, the guardian
ad litem for Loehr’s children; (3) error relating to the representation of the children by their attorney
ad litem; (4) error relating to admission of evidence that Loehr had failed to submit to required drug
tests; (5) that “[t]he Department failed to meet its burden that termination of the parental rights of
Shawna Loehr was in the best interests of each of the children”; and (6) that “[t]he Department failed
to meet its burden that there was sufficient grounds for termination of [her] parental rights.” In her
second issue on appeal, Loehr challenges the trial court’s frivolousness determinations as to all but
her fourth statement point.
        5
            Loehr asserted:

        A new trial should be granted to Movant because the Texas Department of Family
        Protective Services (Department) made an improper and prejudicial jury argument.
        Specifically, the Petitioner introduced evidence over objection that pertained to
        an alleged sexual abuse incident between the Respondent Mother and her younger
        brother at least a decade before the alleged events Petitioner pled in the Affidavit
        attached to the Original Petition as reasons for removal; further Respondent Mother
        was not alleged to have conducted sexual abuse against her children. The inclusion
        of such an allegation had a prejudicial impact which far outweighed any probative
        value.

                                                   3
See Adams v. Texas Dep’t of Family & Protective Servs., 236 S.W.3d 271, 278 (Tex. App.—Houston

[1st Dist.] 2007, no pet.); see also Tex. R. App. P. 38.1(f) (“[t]he statement of an issue or point will

be treated as covering every subsidiary question that is fairly included”); In re M.N., 262 S.W.3d

799, 801 (Tex. 2008) (“‘It is our practice to construe points of error liberally in order to adjudicate

justly, fairly and equitably the rights of the litigants.’”) (quoting Williams v. Khalaf, 802 S.W.2d

651, 658 (Tex. 1990)); cf. id. at 801-04 (holding that appellate rules permitting extensions of time

applied to section 263.405(b)’s deadline for filing statement of points, in absence of indication

that legislature intended to prohibit them). The Department does not dispute that Loehr’s statement

of points for appeal preserved her complaint regarding the trial court’s admission of the sexual abuse

evidence.6

                On appeal, Loehr does not dispute that her complaint about the jury argument was

frivolous,7 but challenges only the trial court’s determination that her evidentiary complaint was

frivolous. In determining whether a point for appeal is frivolous, a trial court considers “whether

the appellant has presented a substantial question for appellate review.” Tex. Civ. Prac. & Rem.

        6
           On March 9—after the fifteen-day period for filing a statement of points for appeal but
still within the court’s deadline to hold its thirty-day hearing—Loehr filed a “First Amended
Statement of Points.” In this document, in addition to adding some new arguments that were not
stated as points, Loehr eliminated the reference in her first point to improper jury argument, thus
clarifying that it pertained solely to her evidentiary complaint. On March 19, after the trial court
signed its order on the thirty-day hearing, the Department filed an “Objection to Late Filed First
Amended Statement of Points.” There is no indication in our record whether the trial court took any
action with respect to Loehr’s attempt to amend her points for appeal, nor any that the court ever
ruled on the Department’s objections. We need not address the validity or implications of Loehr’s
amended points for appeal because we conclude that her original points preserved her evidentiary
complaint.
        7
         Loehr’s trial counsel conceded during the thirty-day hearing that he did not object to or
otherwise preserve error concerning the jury argument.

                                                   4
Code Ann. § 13.003(b). In other words, an appeal point is frivolous “when it lacks an arguable

basis either in law or in fact.” Lumpkin v. Dep’t of Family & Protective Servs., 260 S.W.3d 524, 527

(Tex. App.—Houston [1st Dist.] 2008, no pet.) (citing In re K.D., 202 S.W.3d 860, 865

(Tex. App.—Fort Worth 2006, no pet.)). Appellate courts review a trial court’s determination

of frivolousness under an abuse of discretion standard. In re M.N.V., 216 S.W.3d 833, 834

(Tex. App.—San Antonio 2006, no pet.); In re K.D., 202 S.W.3d 860, 866 (Tex. App.—Fort Worth

2006, no pet.); In re H.D.H., 127 S.W.3d 921, 923 (Tex. App.—Beaumont 2004, no pet.);

De La Vega v. Taco Cabana, Inc., 974 S.W.2d 152, 154 (Tex. App.—San Antonio 1998, no pet.).

A trial court abuses its discretion when it acts arbitrarily or unreasonably or without reference to any

guiding rules or principles. Lumpkin, 260 S.W.3d at 527 (citing Downer v. Aquamarine Operators,

Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)).

                   Although our record does not include a reporter’s record from the portion of trial in

which the complained-of evidence was presented, there is no dispute that the Department, in fact,

introduced evidence at trial regarding an incident of sexual abuse allegedly involving Loehr and own

brother several years earlier. The Department’s petition to terminate Loehr’s parental rights is also

in our record, and it reflects that, as Loehr claims, the Department did not allege that Loehr had ever

sexually abused her children. During the hearing, the Department claimed that it had presented the

evidence not to establish “a risk that she would perpetrate but that she might acquiesce to a

male paramour.” When addressing the issue in connection with Loehr’s motion for new trial, the

trial court confirmed that the evidence had little, if any, probative value with respect to any material

issues at trial.



                                                     5
                The trial court recounted that, in a pretrial hearing, “the Department . . . asked for a

further—for a further restriction on the rights of the parents . . . based on those allegations, and

I didn’t let that go anywhere. So I was a little surprised that they brought it up but I didn’t let it go

anywhere then because I didn’t believe it had anything to do with this case.” When the Department

later resurrected the issue at trial, the court explained, it nonetheless admitted the evidence,

notwithstanding its scant probative value, in its belief that the evidence was so far-removed from

the real issues in the case that it would actually backfire on the Department and help Loehr:


        . . . no offense to [the Department’s trial counsel] . . . and I’m not trying to substitute
        my judgment for the jury’s here but they put on that evidence, and to me, not only
        was it not prejudicial to your [Loehr’s] side, I believe it almost ruined their [the
        Department’s] case. If I could have pointed to any one thing that would have
        made the jury not decide to terminate it was the fact that they put on that evidence.
        I, in watching it, in watching the momentum of the case, believe that they had all
        the momentum until they started putting on that evidence. And I believed that the
        evidence was so—lacking in any kind of substantial proof, and it did so badly, for me
        to think that if the State really was going to go forward and using this evidence, that
        they might not have—if they felt like they had to rely on that, they were going to lose.

        And not only did I not believe it but I believe the jury didn’t believe it. So I don’t
        believe that it was prejudicial, I think it was unwise to have brought it up. Because
        I believe that the jury didn’t buy into it. I believe that might be a point of—that a
        Court of Appeals could take up, to see if it did. I don’t believe it was prejudicial so
        I certainly don’t believe that the prejudicial effect outweighed anything, I just
        believed that when I saw that testimony I didn’t think that it should have, or could
        have had any part in the case. . . . So I didn’t buy into it, I don’t think that the
        jury bought into it. I wouldn’t make the ruling that it had any prejudicial effect
        whatsoever but in fact helped your client.


The trial court concluded this discussion, “But I wouldn’t say that it’s a frivolous point that a

Court of Appeals couldn’t take up.” The court then overruled this ground for a new trial.




                                                    6
               The trial court’s concluding observation is not, strictly speaking, a finding that

Loehr’s evidentiary complaint is not frivolous; what we must review is the court’s written order

holding that this complaint, as presented in Loehr’s statement of points on appeal, is frivolous.8 We

nonetheless note the trial court’s observation because it was correct. The record demonstrates that

Loehr’s evidentiary point has a factual basis—the trial court, in fact, admitted evidence of past

sexual abuse involving Loehr and her brother that had little, if any, connection to the Department’s

termination suit. Loehr’s evidentiary complaint also has a legal basis—such evidence tends to have

an extreme prejudicial impact that can give rise to reversible error when admitted. See Tex. R. Evid.

403; Wheeler v. State, 67 S.W.3d 879, 889 (Tex. Crim. App. 2002); Kirby v. State, 208 S.W.3d 568,

572-75 (Tex. App.—Austin 2006, no pet.). On this record, we can conclude only that Loehr’s

complaint presents a substantial question for appellate review. It was not frivolous.

               We hold that the trial court abused its discretion in holding that Loehr’s evidentiary

complaint was frivolous. Consequently, Loehr is entitled to proceed in her main appeal with a

record that is free of charge to her. See Tex. Civ. Prac. & Rem. Code Ann. § 13.003; Tex. Fam.

Code Ann. § 263.405(d)(3). We sustain Loehr’s second issue, and need not address Loehr’s

contentions regarding her other points in her statement of points for appeal. See Tex. R. App.

P. 47.1. Similarly, we need not reach Loehr’s contentions in her first issue that she is entitled to a

free record regardless of section 263.405’s limitations. As for Loehr’s assertion that she should be

permitted to raise additional issues that her appellate counsel might later identify once he can


       8
        The record suggests that the trial court’s somewhat inconsistent view of the same complaint
when presented in Loehr’s appeal points may have resulted from a misunderstanding that the point
complained only of improper jury argument and not about admission of the sexual abuse evidence.

                                                  7
review the record, it is not cognizable in this appeal, which is limited to the frivolousness issue. See

Tex. Fam. Code Ann. § 263.405(g); Lumpkin, 260 S.W.3d at 526.

               We reverse the trial court’s order determining Loehr’s appeal to be frivolous and

order that the main appeal proceed on the merits. See D.R. v. Texas Dep’t of Family & Protective

Servs., 281 S.W.3d 598, 602 (Tex. App.—El Paso 2008, no pet.). This decision is not a final

determination on the merits of Loehr’s main appeal.




                                               __________________________________________

                                               Bob Pemberton, Justice

Before Justices Patterson, Pemberton and Waldrop

Reversed

Filed: July 22, 2009




                                                   8
