                               NUMBER 13-11-00472-CV

                                 COURT OF APPEALS

                         THIRTEENTH DISTRICT OF TEXAS

                           CORPUS CHRISTI - EDINBURG




                 IN THE INTEREST OF C.B. AND J.B., CHILDREN


                      On appeal from the 135th District Court
                            of Victoria County, Texas.


                               MEMORANDUM OPINION

           Before Chief Justice Valdez and Justices Garza and Vela
                Memorandum Opinion by Chief Justice Valdez
          In this suit affecting the parent-child relationship, appellant, Beatrice Rubio,

appeals by four issues the trial court’s order granting appellee, Jason M. Burmeister, the

exclusive right to designate the primary residence of the couple’s two children. We

affirm.

                                      I. BACKGROUND

          Appellant and appellee were divorced in Victoria, Texas in 2005. The divorce

decree designated appellant and appellee joint managing conservators of their two
minor daughters, C.B. and J.B. At that time, appellant was granted the exclusive right

to designate the primary residence of the children. Subsequently, appellant moved with

the children from Victoria to Albuquerque, New Mexico.

       The case was reopened in 2006, after C.B. made an outcry of sexual abuse by

appellant’s boyfriend, Lonnie Taylor. In 2007, the court ordered appellant to return C.B.

to Victoria to reside with appellee.       J.B. continued to reside with appellant in

Albuquerque until 2009, when the parties agreed to an order that gave appellee the

exclusive right to designate the primary residence of both children. Thereafter, J.B.

returned to Victoria to reside with appellee.

       The case was reopened again in 2010, when appellee filed a petition to modify

the parent-child relationship, alleging that the children had been “emotionally abused”

by appellant and requesting that appellant be limited to supervised visitation with the

children because of the “danger of further emotional abuse.” Subsequently, appellant

filed a counter-petition to modify the parent child relationship, requesting that the court

grant her the exclusive right to designate the primary residence of the children.

       A bench trial was held on February 7 and 8, 2011. The court heard testimony

from eight witnesses:      (1) Sherry Yvonne Chambliss, C.B.’s counselor; (2) Kim

Stanfield, J.B.’s counselor; (3) appellant; (4) Maria Rodriguez, appellant’s cousin; (5)

appellee; (6) Leticia Garza, appellant’s aunt; (7) L.G., appellant’s 14-year-old son and

half-brother to C.B. and J.B.; and (8) Kim Frost, appellant’s attorney (on the issue of

attorney’s fees). Although appellant made two requests that the trial court interview

C.B. in chambers, both requests were denied.




                                                2
       The trial court ruled that “based upon the credible evidence that the Court has

heard [appellee] should have the authority to designate the [primary] residence of the

children.” This appeal ensued.

                                       II. ANALYSIS

       A. Issue One

       In her first issue, appellant complains that “the entire record reveals that the trial

court erred and abused its discretion in determining the best interest of C.B. and J.B.”

       1. Standard of Review

       In determining which joint managing conservator will have the exclusive right to

establish the primary residence of the children, the trial court is vested with broad

discretion. See In re K.L.W., 301 S.W.3d 423, 428 (Tex. App.—Dallas 2009, no pet.);

see also D.W.J.B., 362 S.W.3d 777, 780 (Tex. App.—Texarkana 2012, no pet.) (“We

review a trial court's decision regarding custody, control, and possession matters

involving a child under an abuse of discretion standard.”). The trial court’s judgment will

be disturbed only where the record as a whole shows that the trial court abused its

discretion.   Strong v. Strong, 350 S.W.3d 759, 765 (Tex. App.—Dallas 2011, pet.

denied) (citing Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982)). An appellate

court cannot conclude that a trial court abused its discretion merely because the

appellate court would have ruled differently in the same circumstances.          Moreno v.

Perez, 363 S.W.3d 725, 737 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (citing E.I.

du Pont de Nemours & Co., Inc. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995)); see

also Pena v. Pena, 8 S.W.3d 639, 639 (Tex. 1999) (per curiam) (“[T]he trial court is

vested with wide discretion in determining custody issues.”).



                                             3
       A trial court abuses its discretion if it acts arbitrarily and unreasonably or without

reference to guiding principles. K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex.

2000); In re T.D.C., 91 S.W.3d 865, 872 (Tex. App.—Fort Worth 2002, pet. denied). A

trial court does not abuse its discretion when it makes a decision on conflicting

evidence. Burns v. Burns, 116 S.W.3d 916, 921 (Tex. App.—Dallas 2003, no pet.). If

some evidence of a substantive and probative character exists to support the trial

court’s decision, there is no abuse of discretion. In re C.C.J., 244 S.W.3d 911, 917

(Tex. App.—Dallas 2008, no pet.); see also In re J.C., 346 S.W.3d 189, 193 (Tex.

App.—Houston [14th Dist.] 2011, no pet.).

       In this case, the trial court did not file findings of fact and conclusions of law.

Therefore, it is implied that the trial court made all the necessary findings to support its

final order. See Burns, 116 S.W.3d at 920. The judgment will be upheld on any legal

theory that finds support in the evidence. Strong, 350 S.W.3d at 765; see also In re

A.N.O., 332 S.W.3d 673, 676 (Tex. App.—Eastland 2010, no pet.).

       2. Applicable Law

       Under the relevant provisions of section 156.101 of the family code, an order

providing the terms and conditions of conservatorship may be modified by the trial court

if modification would be in the best interest of the child and at least one of the two

criteria applicable in this case is met: (A) “the circumstances of the child, a conservator,

or other party affected by the order have materially and substantially changed” since

rendition of the order; or (B) “the child is at least 12 years of age and has expressed to

the court in chambers as provided by Section 153.009 the name of the person who is




                                             4
the child’s preference to have the exclusive right to designate the primary residence of

the child.” TEX. FAM. CODE ANN. § 156.101(1)(A)-(B) (West Supp. 2011).

          3. Discussion

          As the party seeking modification of the parent-child relationship, appellant had

the burden at trial to establish each of the foregoing criteria in her favor. See id. Implicit

in the trial court’s denial of appellant’s request for modification is a finding that appellant

failed to establish one or more of the criteria. See Burns, 116 S.W.3d at 920.

          With regard to J.B., who is under the age of 12, we believe the trial court was

within its discretion to deny appellant’s request for modification because appellant did

not establish that there had been a material and substantial change in circumstances

since the 2009 order granting appellee the exclusive right to determine residence. See

TEX. FAM. CODE ANN. § 156.101(1)(A).

          To prove a material and substantial change of circumstances has occurred, a

movant must show the conditions as they existed at the time of entry of the prior order.

In re C.C.J., 244 S.W.3d at 917 (citing In re T.W.E., 217 S.W.3d 557, 559 (Tex. App.—

San Antonio 2006, no pet.)). Once such conditions have been established, the movant

must show what material changes have occurred in the intervening period. Id. A trial

court’s determination of changed circumstances is not guided by rigid rules, but is fact-

specific. Id. (citing In re Z.B.P., 109 S.W.3d 772, 779 (Tex. App.—Fort Worth 2003, no

pet.)).

          In this case, the prior order that appellant sought to modify was entered by

agreement of the parties in March 2009. Other than testimony establishing that the

order was entered by agreement, there is no evidence in the record regarding the



                                              5
conditions as they existed in 2009. In the absence of such evidence, the trial court had

no basis to find that a material and substantial change had occurred. Accordingly, it

was not an abuse of discretion for the trial court to deny appellant’s request for

modification as it related to J.B.

       With regard to C.B., who is over the age of 12, we believe that the trial court was

within its discretion to deny appellant’s request for modification on the basis that it was

not in the best interest of the child. See TEX. FAM. CODE ANN. § 156.101(1).

       The trial court is given wide latitude in determining the best interest of a minor

child. Gillespie, 644 S.W.2d at 451 (citing Leithold v. Plass, 413 S.W.2d 698 (Tex.

1967)). Furthermore, the trial court, as the fact finder, is the sole judge of the credibility

of the witnesses and the weight to be given their testimony.          See City of Keller v.

Wilson, 168 S.W.3d 802, 819 (Tex. 2005).            When a trial court is presented with

conflicting evidence, it may believe one witness and disbelieve others as well as resolve

inconsistencies in testimony.        McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex.

1986); Viera v. Viera, 331 S.W.3d 195, 210 (Tex. App.—El Paso 2011, no pet.).

       “The trial court is in the best position to observe the demeanor and personalities

of the witnesses and can feel the forces, powers, and influences that cannot be

discerned by merely reading the record.” In re A.D.H., 979 S.W.2d 445 (Tex. App.—

Beaumont 1998, no pet.). Witness credibility issues “that depend on appearance and

demeanor cannot be weighed by the appellate court.” In re J.P.B., 180 S.W.3d 570,

573 (Tex. 2005) (per curiam).          Even when credibility issues are reflected in the

transcript, the appellate court must defer to the fact-finder’s determinations, at least so

long as those determinations are not themselves unreasonable. Id.



                                              6
      In this case, the trial court was presented with evidence from appellant and

appellee concerning the sexual abuse of C.B. by Lonnie Taylor, appellant’s former

boyfriend.   It was undisputed that C.B.’s outcry of sexual abuse in 2006 is what

necessitated her relocation back to appellee’s home in 2007. It was also undisputed

that Taylor pled guilty to one or more charges as part of a plea-bargain arrangement.

      The trial court heard evidence about the different manner in which appellee and

appellant responded to C.B.’s outcry of sexual abuse. Appellee testified that he sought

custody of C.B. and then placed her in counseling and that he believed C.B. was

sexually abused. He worked with law enforcement in Albuquerque, New Mexico to

ensure Taylor was prosecuted.

      Appellant gave the following testimony:

      Counsel:      Well, now do you believe that your boyfriend Lonnie Taylor
                    sexually abused [C.B.]?

      Appellant:    I believe what my daughter tells me, yes, ma’am.

      Counsel:      Do you believe that Lonnie Taylor sexually abused your
                    daughter?

      Appellant:    Yes, ma’am.

      Counsel:      Did you tell the investigator in New Mexico that you didn’t
                    really believe that had happened?

      Appellant:    No. I did not say that I didn’t believe that it never happened.

      Counsel:      What did you tell the investigator?

      Appellant:    I told her that [C.B.] came to me and told me that it didn’t
                    happen . . . . [C.B.] told me that [appellee] had her lie about
                    what Lonnie did to her . . . . [C.B.] came and told me that
                    [appellee] had her making these allegations towards Lonnie
                    Taylor and that when she would say it wasn’t true he would
                    slap her or hit her or tell her he was going to have her put in



                                            7
                    jail because she shouldn’t be making those remarks that
                    they weren’t true.

                    I did believe her when she came to me the first time when
                    we went to court for it, which was in January 2007 when
                    [C.B.] stayed here to live with her father. And when we put
                    everything together after [C.B.] came to me telling me that it
                    wasn’t true, I have my doubts but only because she came to
                    me telling me that [appellee] has her lying about it.

      Appellant’s aunt from New Mexico also testified on the subject of C.B.’s outcry

and appellant’s response to it:

      Counsel:      Mr. Lonnie Taylor was found guilty of abusing [C.B.];
                    correct?

      Witness:      That was a plea bargain.

      Counsel:      Right.

      Witness:      The man had no choice.

      Counsel:      He could have gone to trial; couldn’t he, Mrs. Garza?

      Witness:      Could he have gone to trial?

      Counsel:      He could have gone to trial, couldn’t he?

      Witness:      I wish he would have.

      Counsel:      A criminal can always go to - -

      Witness:      I wish he would have, ma’am, so the truth would have been
                    told.

      Counsel:      Okay. Because you and [appellant] - -

      Witness:      Uh-huh

      Counsel:      Don’t believe that Lonnie Taylor hurt [C.B.], do you?

      Witness:      No, ma’am. We don’t, and [appellee] knows that.

                    ...



                                            8
Counsel:   All of your family . . . doesn’t believe that Lonnie Taylor hurt
           her, isn’t that true?

Witness:   That’s true.

Counsel:   [A]nd you don’t believe that Lonnie Taylor hurt [C.B.], do
           you?

Witness:   No, ma’am. I don’t.

Counsel:   All right. And [appellant] doesn’t believe that Lonnie Taylor
           hurt [C.B.], does she?

Witness:   No, ma’am.

Counsel:   Well, I guess I’m confused. I’m trying to figure out why you
           would believe that he didn’t abuse your niece if she said that
           he did.

Witness:   [C.B.] never told me he did. She never told [appellant].
           [Appellee] and [his] so-called wife was – were the ones that,
           you know, were told. And I just don’t understand how that
           was because [C.B.] was always open with her mom. So that
           was kind of like, you know, why wouldn’t [C.B.] tell her mom.

Counsel:   But after she said these things y’all still didn’t believe her?

Witness:   No, ma’am. No.

           ...

Counsel:   Okay. If something else happened to [C.B.] and she came
           forward and said somebody had hurt her, do you think you’d
           have trouble believing her?

Witness:   No, ma’am.

Counsel:   You don’t believe her about Lonnie Taylor but you would
           believe her if she came forward with something else?

Witness:   Well, I mean, if it was true, yes, I would believe her.

Counsel:   How would you know whether it’s true, Mrs. Garza?

Witness:   How do you know it’s true?



                                    9
Counsel:     How do you know it’s true?

Witness:     I don’t know. About Lonnie I don’t know if it’s true. Is it – I
             don’t think it’s true. I know it’s not true because he never got
             the opportunity to be alone with those girls. Never. Those
             girls stayed with us until [appellant] got home or [appellant’s]
             friend went and took them, which was a lady friend.

Counsel:     Okay.

Witness:     Lonnie never had a chance to keep those girls. Lonnie was
             never around that much. . . . He was never home.

The trial court also heard testimony from Chambliss, C.B.’s counselor:

Counsel:     So in relation to . . . [C.B.] and the sexual abuse, has she
             ever told you anything happened to her sexual abuse wise?

Witness:     No.

Counsel:     Has she ever denied that anything happened to her sexual
             abuse wise?

Witness:     No. She just says she doesn’t really remember it.

Counsel:     Okay. And what kind of – what kind of risk is there for
             children who make an outcry of sexual abuse if their parents
             don’t believe that that happened to them?

Witness:     Well, obviously they get – continue to be a victim, you know,
             because if the parent doesn’t believe them they feel bad
             about themselves. Other people can abuse them and they
             think it’s okay. You know, there’s a lot of things that could
             happen to her.

Counsel:     Have –

Witness:     In other words, she’s not protected.

Counsel:     All right. Do you have any question that [appellee] will
             protect [C.B.] in his home?

Witness:     No.

Counsel:     Do you know whether [appellant] would protect [C.B.]?



                                    10
       Witness:      I don’t know that.

Chambliss also testified that, in her opinion, it was in C.B.’s best interest to remain in

appellee’s home.

       On this record, we believe the trial court implicitly found that it was not in C.B.’s

best interest to relocate to New Mexico to live with appellant. See Burns, 116 S.W.3d at

920. As noted above, an abuse of discretion does not occur when the trial court bases

its decisions on conflicting evidence. Valdez v. Valdez, 930 S.W.2d 725, 731 (Tex.

App.—Houston [1st Dist.] 1996, no writ). Furthermore, an abuse of discretion does not

occur as long as some evidence of a substantive and probative character exists to

support the trial court's decision. Id.

       In this case, the trial court had evidence of a substantive and probative character

to demonstrate that it was in C.B.’s best interest to remain in appellee’s custody

because appellee believed her outcry of sexual abuse, provided her with the

appropriate care by licensed counselors, cooperated with law enforcement to ensure

the perpetrator was brought to justice, and maintained a safe and healthy home for C.B.

that was free of sexual abuse. We note that the trial court has broad discretion in

considering testimony and evidence, with regard to what conditions are detrimental or

advantageous to children for the purpose of deciding custody issues. Niskar v. Niskar,

136 S.W.3d 749, 753 (Tex. App.—Dallas 2004, no pet.). Moreover, the mere fact that a

trial judge may decide a matter within his discretionary authority in a different manner

than an appellate justice in a similar circumstance does not demonstrate that an abuse

of discretion occurred. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242

(Tex. 1985).



                                            11
       Appellant’s first issue is overruled.

       B. Issue Two

       In her second issue, appellant complains that the trial court erred by refusing to

interview C.B. in chambers because she is a child over 12 years of age.

       1. Applicable Law

       Texas Family Code section 153.009(a) provides the following:

       In a nonjury trial or at a hearing, on the application of a party, the amicus
       attorney, or the attorney ad litem for the child, the court shall interview in
       chambers a child 12 years of age or older and may interview in chambers
       a child under 12 years of age to determine the child’s wishes as to
       conservatorship or as to the person who shall have the exclusive right to
       determine the child’s primary residence. The court may also interview a
       child in chambers on the court’s own motion for a purpose specified by
       this subsection.

TEX. FAM. CODE ANN. § 153.009(a) (West 2008).

       2. Discussion

       At the close of evidence, appellant made two requests that the trial court

interview C.B. in chambers. The requests were denied. In denying appellant’s first

request, the trial court stated, “I do not feel that that will help me and so I’m going to

deny that request.” In denying appellant’s second request, the trial court stated, “I have

told you before that based on what I’ve heard so far I do not think that it’s going to assist

me in making this decision and that’s the reason I’ve made the decision I’ve made.”

       Appellant contends that the trial court had no discretion to deny the requests

because the term “shall” used in section 153.009(a) is mandatory, not discretionary.

We agree.     Appellant’s argument is consistent with section 311.016 of the Code

Construction Act, which states in relevant part, “‘[s]hall’ imposes a duty.” TEX. GOV’T

CODE ANN. § 311.016(2) (West 2005). Moreover, we agree with appellant that section

                                               12
153.009(a) confers discretion on the trial court only with regard to children under the

age of 12 and does not distinguish between written and oral applications, as the

Beaumont Court of Appeals recently suggested. See In re S.L.L., No. 09-09-00429-CV,

2011 Tex. App. LEXIS 2367, at *14 (Tex. App.—Beaumont Mar. 31, 2011, pet. denied)

(mem. op.) (“In this case, there is no application for an interview contained in the clerk’s

record; the trial court had the discretion to deny the verbal request.”).

       Nevertheless, we note that subsection (c) provides that “[i]nterviewing a child

does not diminish the discretion of the court in determining the best interests of the

child.” TEX. FAM. CODE ANN. § 153.009(c). In this case, the trial court’s statements “I do

not feel that [an interview] will help me” and “based on what I’ve heard so far I do not

think that [an interview is] going to assist me in making this decision” indicate that the

trial court had reached a decision with regard to the child’s best interest and that the

court’s decision would not be altered by the child’s stated preferences. In this regard,

the trial court’s refusal to interview the child in chambers appears to have been a

decision calculated to avoid the child’s unnecessary involvement in the proceeding.

       Several witnesses gave testimony regarding the children’s preferences.

Chambliss, C.B.’s counselor, who began seeing C.B. in September 2010, testified that

C.B. has never said anything to her to indicate that she wants to change where she

lives. Stanfield, J.B.’s counselor, who began seeing J.B. in January 2011, testified that

J.B. has been “wishy washy” about where she wants to live and does not seem to feel

strongly about it.   She appears to be torn between the two homes, according to

Stanfield, who also told the court that J.B. seems to be happy living with appellee.




                                             13
       Appellant testified that, since March 2010, both C.B. and J.B. have told her that

they did not want to live with appellee. In relevant part, appellant testified as follows:

       It was the day before they were supposed to fly back to their dad that
       [C.B.] and [J.B.] asked me to go sit down with them in the living room and
       started crying. And I’m not talking about just a little bit of tears. They
       were bawling.

       [C.B.] told me that her dad had her lie about what Lonnie had did [sic] to
       her. [J.B.] told me she didn’t want to go back because they were mean to
       her, and [C.B.] also had told me that her dad calls her fat and ugly and
       that she gets it from me. And that . . . when [C.B.] tells her dad that she
       wants to live with me, he slaps her. He tells her he’s going to have her put
       in jail and just other simple things like that.

       And as for [J.B.], she just told me that they’re mean to her and that’s all
       she could tell me.

       Maria Rodriguez, appellant’s cousin, testified about her recent experience with

the girls and how they have expressed their desire to be with their mother: “[T]hey do

seem to hang on her more. When I was with them this past weekend they were just all

over her like they were grasping for everything they can get while she’s – while they

have her. And I think that affects them.”

       The trial court also heard testimony from Leticia Garza, appellant’s aunt, who

lives in New Mexico and was present when the girls started crying and told their mother

they did not want to return to Texas to live with appellee. Garza also testified that prior

to the trial, C.B. told her, “I’ll be so glad to go home,” referring to her mother’s home in

New Mexico.

       In light of the foregoing evidence concerning the preferences of the children and

in light of the trial court’s statements that an interview in chambers would not assist the

court in making the decision based on what it had already heard, we conclude that the

trial court’s refusal to interview C.B. was consistent with the discretion recognized in

                                             14
subsection (c) of family code section 153.009.      Although the trial court violated the

mandatory language in subsection (a) by refusing to interview C.B., we conclude based

on the foregoing that the error was harmless and did not amount to reversible error.

See TEX. R. APP. P. 44.1(a). Appellant’s second issue is overruled.

      C. Issue Three

      In her third issue, appellant complains the trial court erred in allowing the

testimony of an improper, untimely-designated expert.

      1. Applicable Law and Standard of Review

      Under Rule 193.6, discovery that is not timely disclosed and witnesses that are

not timely identified are inadmissible as evidence. TEX. R. CIV. P. 193.6(a). A party who

fails to timely designate an expert has the burden of establishing good cause or a lack

of unfair surprise or prejudice before the trial court may admit the evidence. TEX. R. CIV.

P. 193.6(b). We review a trial court’s ruling to admit or exclude the testimony of an

untimely-designated expert for abuse of discretion. See Fort Brown Villas III Condo.

Ass'n v. Gillenwater, 285 S.W.3d 879, 881 (Tex. 2009).

      2. Discussion

      At trial, appellant objected to the testimony of Kim Stanfield, J.B.’s counselor, on

the basis that she was untimely designated:

      And, Your Honor, I know earlier off the record [counsel for appellee] had
      mentioned that Kim Stanfield had started seeing [J.B.], the younger child
      in February of this year and that’s the reason she could not – or January,
      I’m sorry, and that’s the reason she could not supplement the discovery to
      me prior to January 6.

      But you ordered her to give me some notes and I did get those, Your
      Honor. And I don’t know if [counsel for appellee] is just [sic] didn’t
      remember correctly or what the assertion to the Court was, but the notes
      actually indicate that the little girl was seeing the counselor back in 2010

                                            15
       prior to the discovery ever being due. And so I would renew my objection
       to an improperly designated expert.

The trial court overruled appellant’s objection, stating, “Well, I’m going to . . . hear the

witness because I think it’s essential that I do so.”

       On appeal, appellant argues that there is no testimony or evidence in the record

that either (1) there was good cause for the failure to timely designate, or (2) that the

failure to designate the expert would neither unfairly surprise nor unfairly prejudice

appellant’s case. See TEX. R. CIV. P. 193.6(a). According to appellant, appellee was

given more than adequate time to respond to the requests, which were propounded on

September 10, 2010.

       Counsel for appellee told the trial court that Stanfield did not begin to see J.B.

until January 2011. Furthermore, Stanfield testified that her “first visit with [J.B.] was

January 4, 2011” and that the note referred to by appellant that “says January 4, 2010”

was a mistake. Although appellant continues to assert that appellee had four months to

answer the requests propounded on September 10, 2010, the trial court heard

uncontroverted evidence to the contrary. Therefore, we conclude that appellant has not

demonstrated an untimely designation by appellee or an abuse of discretion by the trial

court. Accordingly, we overrule appellant’s third issue.

       D. Issue Four

       In her fourth issue, appellant complains the trial court erred in excluding proper

rebuttal evidence.

       1. Standard of Review

       We review a trial court’s decision to admit or exclude evidence under an abuse of

discretion standard. Interstate Northborough P'ship v. State, 66 S.W.3d 213, 220 (Tex.

                                             16
2001); City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995). The trial

court’s evidentiary ruling will be upheld if there is any legitimate basis for the ruling.

Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). Under an

abuse of discretion standard, we are not free to substitute our judgment for the trial

court's judgment. Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). Instead,

a trial court abuses its discretion only if it acts in an arbitrary or unreasonable manner

without reference to any guiding rules or principles. Downer, 701 S.W.2d at 241-42.

      2. Discussion

      At trial, appellee testified that appellant “gets to talk to [C.B. and J.B.] at least two

possibly three times a week.” Appellee also testified that he has never done anything to

limit the number of times appellant speaks to the children during the week. Appellant

sought to cross-examine appellee regarding a purported inconsistency with his

testimony, as evidenced by an email in which appellee told appellant:                “I am in

compliance with what the court order states concerning the phone calls to the girls, just

as long as you speak to them once a week.” Counsel for appellee objected to the

admission of the email on the basis that it was not produced in discovery, and the trial

court sustained the objection.

      On appeal, appellant contends that the trial court committed reversible error by

excluding the email from evidence. A successful challenge to evidentiary rulings usually

requires the complaining party to show that the judgment turns on the particular

evidence excluded or admitted. See Alvarado, 897 S.W.2d at 753-54. In determining if

the excluded evidence probably resulted in the rendition of an improper judgment, a

court must review the entire record. McCraw v. Maris, 828 S.W.2d 756, 758 (Tex.



                                             17
1992); Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989). A court

ordinarily will not reverse a judgment for erroneous rulings on admissibility of evidence

when the evidence in question is cumulative and not controlling on a material issue

dispositive to the case. Gee, 765 S.W.2d at 396. To obtain a reversal of a judgment

based on error in the exclusion of evidence, an appellant must show that the trial court’s

ruling was in error and that the error was calculated to cause and probably did cause

the rendition of an improper judgment. TEX. R. APP. P. 44.1; Alvarado, 897 S.W.2d at

753; McCraw, 828 S.W.2d at 757.

      We have reviewed the entire record and conclude that appellant has not

demonstrated that the trial court committed reversible error by excluding the

complained-of email. As appellant notes in her brief, Texas law does not restrict a party

to any one particular form of attacking the credibility of a witness. See TEX. R. EVID.

607, 611(b). Texas Rule of Evidence 613(a) allows for the examination of a witness

concerning a prior inconsistent statement. See TEX. R. EVID. 613(a). Although the trial

court excluded the email from evidence, the error, if any, did not restrict appellant from

cross-examining and impeaching appellee with the inconsistent statement he made in

the email. Nor did the trial court prohibit appellant from offering her own testimony

about the frequency of her telephone calls to the children and the limits or restrictions

appellee placed on those communications. Accordingly, appellant cannot establish that

the error, if any, was calculated to cause and probably did cause the rendition of an

improper judgment. See TEX. R. APP. P. 44.1.

      Appellant’s fourth issue is overruled.




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                                    III. CONCLUSION

      The judgment of the trial court is affirmed.



                                                      ___________________
                                                      ROGELIO VALDEZ
                                                      Chief Justice

Delivered and filed the
2nd day of August, 2012.




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