

NO. 07-10-00353-CV
 
IN THE COURT OF APPEALS
 
FOR THE
SEVENTH DISTRICT OF TEXAS
 
AT
AMARILLO
 
PANEL A
 

APRIL
27, 2011
 

 
IN THE INTEREST OF J.J.K., A CHILD

 

 
FROM THE 223RD DISTRICT COURT OF GRAY COUNTY;
 
NO. 33,952; HONORABLE LEE WATERS, JUDGE

 

 
Before CAMPBELL
and HANCOCK and PIRTLE, JJ.
 
OPINION
            Appellant, Joseph S. Kirkland,
appeals a judgment from a jury verdict awarding sole managing conservatorship
of J.J.K. to appellee, Jennifer Jolene Smith, and
further finding that naming Kirkland as possessory conservator of the child
would not be in the best interest of the child. 
Kirkland appeals through two issues. 
We will affirm.
Factual and Procedural Background
            The
judgment that Kirkland appeals from is the result of a five-year legal battle
in a suit affecting the parent-child relationship.  After the original suit was settled by
agreement, Kirkland filed a motion for new trial, or in the alternative,
another suit alleging a change of status of the child or parent requiring a
modification of the judgment.  This suit
was also terminated by an agreed judgment. 
Within the year, Kirkland filed yet another suit requesting to modify
the parent-child relationship. 
Eventually, Smith filed a counter petition to modify the parent-child
relationship and these matters were tried before a jury on July 19-21,
2010.   The jury returned its verdict on
July 21, answering all jury questions against Kirkland.  The trial court entered its judgment on the
jury’s answers to the jury questions on August 5, 2010.  Kirkland filed his notice of appeal on
September 7, 2010.[1]  
            Subsequently,
Kirkland made at least three attempts to file briefs meeting the requirements
of the Texas Rules of Appellate Procedure; however, the first two attempts
resulted in Kirkland being advised that the briefs filed failed to meet the
requirements of the rules.  See Tex. R. App. P. 38.1.[2]  Finally, on April 6, 2011, Kirkland filed a
brief that was acceptable.  The clerk’s
record in this matter was filed on December 6, 2010.  However, no reporter’s record has been
received by the Court.  
On October 7, 2010, the Court advised
Kirkland that the official reporter had filed for an extension of time to file
the reporter’s record.  Kirkland was also
advised, on that date, that he needed to certify back to the Court that he had
requested preparation of the reporter’s record and made arrangements to pay for
the same by October 25, 2010.  On
November 15, 2010, this Court advised Kirkland that no reporter’s record had
been received and that the official reporter had advised the Court that
Kirkland had not requested preparation of any part of the reporter’s record nor
had Kirkland made arrangements to pay for the record.  Based upon this information, Kirkland was
advised that the matter would be decided in the absence of a reporter’s
record.  See Rule 37.3(c).  Kirkland has never claimed to be indigent or
that he is otherwise permitted to proceed without payment of costs of
appeal.  
            Smith’s
brief is not yet due at this Court.  See
Rule 38.6(b).  In order to expedite a
decision in this matter, we will, on our own initiative, suspend the operation
of rules 38.6(b) and 39.8, and consider the issues raised by Kirkland’s
brief.  See Rule 2.  
            Kirkland’s
issues are that: 1) he has never been found to be a threat to the child’s
emotional or physical state, and 2) Smith was in contempt many times creating
the climate that led to the extensive litigation.  Under the background facts and procedures of
the case, as reflected above, we construe Kirkland’s issues to attack the
sufficiency of the evidence to support the jury’s verdict and subsequent
judgment.
Analysis
            After
appropriate instructions were given, the jury was asked whether the order in
existence that controlled the parent-child relationship should be changed to designate
Kirkland as the conservator with exclusive right to designate the primary
residence of the child.  The jury
answered “No.”  The jury was then asked
if the joint managing conservatorship of the child should be replaced by a sole
managing conservatorship.  The jury
answered “Yes.”  Pursuant to the trial
court’s instructions, the jury then answered that Smith, who was then known as
Jennifer Jolene Martindale,[3]
should be named sole managing conservator of the minor child.  Finally, when asked who, if anyone, should be
named possessory conservator and given the option of naming Kirkland, the jury
answered “None.”  Based upon these
answers, the trial court entered its judgment removing the parties as joint
managing conservators, naming Smith as the sole managing conservator, and
finding it was not in the best interest of the child to name Kirkland
possessory conservator of the child.
Standard of Review
            Under
our construction of Kirkland’s issues, we must assume he intends to attack both
the legal and factual sufficiency of the evidence.
Legal Sufficiency
            According
to City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005), “‘No
evidence’ points must, and may only, be sustained when the record discloses one
of the following situations: a) a complete absence of evidence 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; d) the evidence establishes
conclusively the opposite of the vital fact.” 
When reviewing an attack on the legal sufficiency of the evidence on an
issue that the appellant has the burden of proof, we are to review the evidence
supporting the jury finding to determine whether there is no evidence to
support this finding, and then we must review all of the evidence to determine
whether all facts are established for the contrary position as a matter of
law.   Dow Chem. Co. v. Francis,
46 S.W.3d 237, 241 (Tex. 2001) (citing Sterner v. Marathon Oil Co., 767
S.W.2d 686, 690 (Tex. 1989)).  Our review
consists of our viewing the evidence in the light most favorable to the
verdict, crediting favorable evidence if reasonable jurors could, and
disregarding all contrary evidence unless reasonable jurors could not.  City of Keller, 168
S.W.3d at 807.  Finally, we may
not substitute our judgment for that of the trier of
fact as long as the evidence would allow reasonable and fair-minded people to
differ in their conclusion.  Id. at 822. 
This is but another way of saying that so long as there is at least a
scintilla of evidence to support the jury’s answer to the fact question at issue, the legal sufficiency challenge must fail.  Tarrant Reg’l Water Dist. v. Gragg,
151 S.W.3d 546, 552 (Tex. 2004).  
Factual Sufficiency
            In
a factual sufficiency review, we consider all of the evidence, both supporting
and contrary to the jury’s answer to the fact question at issue.  Plas-Tex, Inc. v U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex.
1989).  Because the jury question
involved in our analysis was one that Kirkland bore the burden of proof on, we
will only reverse if we find that the jury’s answer is against the great weight
and preponderance of the evidence.  Dow
Chem. Co., 46 S.W.3d at 242.  In order to reverse on a factual sufficiency
point, we must be convinced that the jury’s answer to the question at issue was
clearly wrong and manifestly unjust.  Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
            As
can be seen by the standard of review for either legal or factual sufficiency,
we are required to review the evidence to determine if that evidence is
sufficient to sustain the jury’s verdict. 
Inasmuch as Kirkland has not provided the Court with the reporter’s
record, there is nothing for us to review. 
See In re Spiegel, 6 S.W.3d 643, 646 n.1
(Tex.App.—Amarillo 1999, no pet.)  Accordingly, we can only say that, based upon
the record that is before us, the jury’s answers must stand and the trial
court’s judgment must be affirmed.
Conclusion
            The judgment
of the trial court is affirmed.
 
                                                                                                Mackey
K. Hancock
                                                                                                            Justice




 




[1] Kirkland’s notice of appeal was due September 5,
2010, however this was a Sunday and the following day was a holiday, Labor Day,
which made Kirkland’s notice timely by being filed on September 7, 2010.  See Tex.
R. App. P. 4.1 and 26.1.
 


[2] Further reference to the Texas Rules of Appellate
Procedure will be by reference to “Rule ___” or “rule ___.”


[3] Appellee had previously remarried and, at time of
trial, was using Martindale as her last name.


