                                 Fourth Court of Appeals
                                          San Antonio, Texas
                                    MEMORANDUM OPINION

                                             No. 04-18-00098-CV

                              In the Interest of N.C.H.-M. Jr. and C.A.H.-M.

                      From the 407th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2016-PA-02745
                         Honorable Charles E. Montemayor, Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Karen Angelini, Justice
                  Rebeca C. Martinez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: August 8, 2018

AFFIRMED

           In three issues, Nick 1 appeals the trial court’s judgment terminating his parental rights to

his two children, N.C.H.-M. and C.A.H.-M. We affirm.

                                                 BACKGROUND

           The Department of Family and Protective Services filed a petition to terminate Nick’s

parental rights. The case was tried to the court. At the conclusion of the trial, the trial court said it

was terminating Nick’s parental rights based on three statutory grounds. The trial court later signed

a judgment terminating Nick’s parental rights. The judgment included five statutory grounds for

terminating Nick’s parental rights. Nick appealed.



1
 We refer to appellant by a fictitious name to protect the children’s identities. See TEX. FAM. CODE ANN. § 109.002(d)
(West Supp. 2017); TEX. R. APP. P. 9.8.
                                                                                          04-18-00098-CV


                         STATUTORY GROUNDS NOT ORALLY RENDERED

        In his first issue, Nick argues the trial court erred because its termination judgment included

two grounds for termination that it did not orally render. At the end of the trial, the trial court stated

that it was terminating Nick’s parental rights based on three statutory grounds, subsections

161.001(b)(1)(N), (O), and (P). See TEX. FAM. CODE ANN. § 161.001(b)(1) (West Supp. 2017).

However, the judgment signed by the trial court bases the termination on subsections

161.001(b)(1)(N), (O), and (P), and two additional statutory grounds, subsections

161.001(b)(1)(D) and (E). See id. As we have previously held, when there is an inconsistency

between a written judgment and an oral pronouncement of judgment in a parental termination case,

the written judgment controls. See In re J.J.S., No. 04-14-00793-CV, 2015 WL 794012, at *1 (Tex.

App.—San Antonio Feb. 25, 2015, no pet.); In re A.C., No. 04-12-00679-CV, 2013 WL 352449,

at *2 (Tex. App.—San Antonio Jan. 30, 2013, pet. denied). We overrule Nick’s first issue.

                                        HEARSAY OBJECTIONS

        In his second issue, Nick argues the trial court erred in overruling two hearsay objections

to the caseworker’s testimony at trial. We review the trial court’s decision to admit evidence for

an abuse of discretion. In re J.F.C., 96 S.W.3d 256, 285 (Tex. 2002). We must uphold a trial court’s

evidentiary ruling if there is any legitimate basis for it. Owens-Corning Fiberglas Corp. v. Malone,

972 S.W.2d 35, 43 (Tex. 1998). Before we can reverse a trial court’s judgment because of the

erroneous admission of evidence, we must conclude the error probably caused the rendition of an

improper judgment. See TEX. R. APP. P. 44.1(a). The erroneous admission of evidence is harmless

if the evidence is merely cumulative of evidence admitted elsewhere at trial. Reliance Steel &

Aluminum Co. v. Sevcik, 267 S.W.3d 867, 873 (Tex. 2008); In re E.A.K., 192 S.W.3d 133, 148

(Tex. App.—Houston [14th Dist.] 2006, pet. denied).



                                                   -2-
                                                                                       04-18-00098-CV


       Nick first complains about the admission of testimony concerning the circumstances that

caused the children to come into the Department’s care. At the beginning of the trial, the

Department asked the caseworker what circumstances had caused the children to come into the

Department’s care. In response, Nick made a hearsay objection. After the trial court overruled the

hearsay objection, the caseworker testified that “substance abuse and domestic violence” caused

the children to come into the Department’s care. Hearsay is a statement, other than one made by

the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the

matter asserted. TEX. R. EVID. 801(d). The trial court could have concluded that the caseworker’s

testimony was not inadmissible hearsay. The caseworker did not relay an out-of-court statement.

The caseworker, who had knowledge of the case, explained what had prompted the Department’s

involvement in this case. See Dinkins v. State, 894 S.W.2d 330, 347 (Tex. Crim. App. 1995)

(concluding that out-of-court statements offered to show how the defendant became a suspect in

an investigation were not inadmissible hearsay).

       Additionally, other testimony about Nick’s substance abuse was admitted at trial.

Specifically, the caseworker testified that Nick had tested positive for methamphetamines, had

criminal charges pending against him for possession of a controlled substance, and had publicized

his marijuana use on social media. Nick did not object to this testimony. The record also contains

other testimony that Nick had been the perpetrator of domestic violence. Again, Nick did not object

to this testimony. Therefore, even if it was error for the trial court to overrule Nick’s first hearsay

objection, the error was harmless. See In re R.H.W., 542 S.W.3d 724, 740 (Tex. App.—Houston

[14th Dist.] 2018, no pet.) (concluding that even if the trial court erred by admitting hearsay

testimony, the error was harmless because similar evidence was admitted elsewhere without

objection).



                                                 -3-
                                                                                       04-18-00098-CV


       Next, Nick complains about the admission of testimony that he had a history of drug abuse.

When the Department asked the caseworker if Nick’s history included drug abuse, Nick made a

hearsay objection. After the trial court overruled the hearsay objection, the caseworker confirmed

that Nick’s history included drug abuse. Again, the record shows that other testimony about Nick’s

drug use was admitted at trial without objection. Therefore, even if it was error for the trial court

to have overruled Nick’s second hearsay objection, the error was harmless. See id. We overrule

Nick’s second issue.

                           JUDICIAL NOTICE OF PRETRIAL TESTIMONY

       In his third issue, Nick argues the trial court erred in taking judicial notice of testimony

from pretrial hearings because “the testimony from the earlier hearings was not authenticated and

entered in evidence.” See Guyton v. Monteau, 332 S.W.3d 687, 693 (Tex. App.—Houston [14th

Dist.] 2011, no pet.) (“In order for testimony from a prior hearing or trial to be considered in a

subsequent proceeding, the transcript of that testimony must be properly authenticated and entered

into evidence.”).

       During trial the Department asked the trial court to take judicial notice of the affidavits on

file and prior orders and testimony from the pretrial hearings in this case. The trial court ruled that

it would take judicial notice of the testimony from the pretrial hearings to the extent the testimony

“was not objected to and sustained.” The following exchange then occurred between Nick’s trial

counsel and the trial court:

       Counsel:        I have to object to the judicial notice being taken of prior testimony.

       Court:          The testimony?

       Counsel:        The testimony itself; yes, Your Honor.

       Court:          But you objected to it?

       Counsel:        Sorry?
                                                 -4-
                                                                                      04-18-00098-CV


       Court:          If it was objected to—

       Counsel:        Yes.

       Court:          I understand the objection. That’s going to be overruled because I
                       did make the provision that the prior testimony, if objected to and
                       sustained, would not be taken judicial notice of. And then, I guess
                       your objection is preserved if it was wrongfully overruled.

       Counsel:        Thank you.

       As shown above, at trial, Nick made a general objection to the trial court taking judicial

notice of the pretrial testimony, rather than a specific objection on the basis that “the testimony

from the earlier hearings was not authenticated and entered in evidence.” Furthermore, the record

indicates the trial court understood Nick’s objection to be about testimony that had been objected

to at the pretrial hearings. To preserve error, a complaint on appeal must comport with the objection

made at trial. Rogers v. Dep’t of Family and Prot. Serv., 175 S.W.3d 370, 376 (Tex. App.—

Houston [1st Dist.] 2005, pet. dism’d w.o.j.) (declining to address a complaint on appeal when it

did not comport with the objection made at trial); TEX. R. APP. P. 33.1(a) (requiring the record to

show that a complaint was made to the trial court as a prerequisite to presenting a complaint for

appellate review). Nick’s complaint on appeal that the trial court could not take judicial notice of

the pretrial testimony because it was not “authenticated and entered in evidence” does not comport

with the objection he made at trial. Therefore, Nick’s complaint has not been preserved for our

review. We overrule Nick’s third issue.

                                           CONCLUSION

       The trial court’s judgment is affirmed.

                                                  Karen Angelini, Justice




                                                 -5-
