

 











 
                                                                                         
                                                                                         
 
 
 
                              NUMBER 13-02-044-CV
 
                         COURT OF APPEALS
 
                     THIRTEENTH
DISTRICT OF TEXAS
 
                         CORPUS
CHRISTI - EDINBURG  
 
IN THE INTEREST OF J.L., A CHILD
 
                       On
appeal from the County Court at Law No. 4 
of Fort Bend County, Texas.
 
                                          O
P I N I O N
 
                      Before
Justices Hinojosa, Dorsey[1]
and Amidei[2]
                                       Opinion
by Justice Amidei
 




Appellant, Bettina Chavez, appeals an adverse jury
verdict and judgment terminating her parental relationship with her minor son,
J.L., and appointing Chris Edwards, the biological father, as sole managing
conservator.  Appellant contends in her
first three issues that the evidence is legally and factually insufficient to
terminate her parental rights because there was no proof: (1) that her husband,
Frank Chavez, caused the death of one of their children; or (2) that she knew
of any conduct of her husband, or any conditions or surroundings which
endangered the children, physically or emotionally.  Based upon our conclusions and rulings on
such issues as stated herein, we reverse and render.
Motion to Dismiss




The State moved to dismiss this appeal for want of
jurisdiction on the ground that appellant failed to file her notice of appeal
within twenty days after the judgment was signed on August 17, 2001, as
required by section 263.405 of the Texas Family Code effective September 1,
2001.[3]  Tex.
Fam. Code Ann. ' 263.405(a)
(Vernon 2002).  The appellant timely
filed a motion for a new trial on September 17, 2001.[4]  The trial court overruled the motion for new
trial on October 22, 2001, by a signed written order, thereby extending the
trial court=s plenary power to November 22, 2001, to grant a new
trial or to vacate, modify, correct or reform the judgment.[5]  Appellant filed a notice of appeal on October
22, 2001.  On October 29, 2001, appellant
filed a motion to vacate written judgment and to modify, correct or reform
judgment pursuant to the court=s plenary jurisdiction, and withdrew her notice of
appeal.  Tex. R. Civ. P. 329b(g). 
On November 6, 2001, the trial court signed a final order modifying and
correcting its August 17, 2001 order, to-wit: correcting the cause numbers on
the severed cause and this cause; stating that the court, rather than the jury,
found termination was shown by clear and convincing evidence; correcting the
spelling of appellant=s trial counsel=s first name; adding a provision regarding the child=s right to inherit; and deleting an erroneous
reference to section 161.205 of the Texas Family Code regarding the dismissal
of the Texas Department of Protective and Regulatory Services (ATDPRS@).[6]  The trial court was within its plenary
jurisdiction to modify its original order. 
Lane Bank Equip.  Co.  v. 
Smith S. Equip. Inc., 10 S.W.3d 308, 309-14 (Tex. 2000); see  Tex.
R. Civ. P. 320, 329b(a),(e), and (g). 
The notice of appeal perfecting this appeal was filed by appellant on
November 9, 2001, well within 20 days after the order was signed as required by
rule 26.1(b) of the Texas Rules of Appellate Procedure.  See Tex.
R. App. P. 26.1(b), 27.3.   
The effect of the new judgment date, not the motion
for new trial, extended the time for filing the notice of appeal.  See id.  The State=s
motion to dismiss is overruled.
 
 




Appellant=s
Motion to Abate Appeal, For Leave to File Out of Time Motion 
For New Trial, And For Remand To Trial Court To
Determine Out-Of-Time 
Motion for New Trial
 
Subsequent to the submission of this case, appellant
filed her motion to abate this appeal, and to remand to the trial court for a
hearing on her out-of-time motion for new trial.  Appellant=s
motion is based on the State=s revealing in the two pending criminal cases
against appellant and her husband[7]
that it would not call Dr. Patricia Moore, the medical examiner who was the key
witness in this termination case, but would instead call Dr. Harry Lee Wilson,
a medical examiner from El Paso whose conclusions are in stark contrast to Dr.
Moore>s conclusions.
Appellant=s motion is moot and it is unnecessary that we rule
on it, but we take judicial notice of the testimony of Dr. Wilson given in a ADaubert
Hearing@[8] on March 19, 2003, in Cause No. 33,424A, State
of Texas v. Frank Andrew Chavez, in the District Court of Fort Bend County,
Texas, 268th Judicial District, a copy of which is attached to appellant=s motion. 
Relevant portions of Dr. Wilson=s testimony will be discussed hereafter in
connection with appellant=s first three issues.  Tex.
R. Evid. 201.
Factual and Procedural Background




Chris Edwards and Bettina Lohner Chavez (appellant)
were the biological parents of Hallie Lohner, J.L., and another child (the Ainfant@), although they were not married to each other when
the children were born.  On April 15,
2000, appellant and Frank Chavez were married after living together and sharing
parental responsibilities as to Hallie and J.L. since March 1998.  
On one occasion, appellant disagreed with Frank and
confronted him when he spanked J.L. for hitting Hallie on the head with a
plastic T-ball bat, thereby leaving a bruise on J.L.=s hand.  TDPRS
investigated but did not find that there was any abuse.   In
December 1998, Hallie was hospitalized and was diagnosed as having had a
stroke.  The hospital and TDPRS
investigated, but again ruled out any abuse. 
Appellant and Frank took Hallie to her pediatrician and to therapy and
she got substantially better, but remained clumsier than a normal child.  The Chavez=s had
their third child on October 15, 1999.
On March 31, 2000, Hallie possibly broke her ribs
when she fell off a merry-go-round.  At
the Chavez= wedding Hallie fell down some stairs.  
On April 24, 2000, Hallie urinated in her pants at a
Wal-Mart store.  Frank became upset.  When they went home Hallie was standing at
the front door waiting for Frank to unlock the door, but when Hallie did not go
in the front door immediately as expected or told, Frank who had his hands
occupied holding the infant, who was in a baby car seat, used his foot to push
Hallie on her buttocks to get her to go in the door.  The State produced a statement written by
Detective Sodolak and signed by appellant which uses the word Akick@ instead of Apush.@  




Between April 24 and May 3, 2000, Hallie appeared
well to various people who saw her, but on May 3, 2000 she became ill and threw
up.  Frank and appellant did not believe
she needed medical care, but as they prepared to go to bed, Hallie turned blue
and they attempted to give her CPR.  A
sheriff=s deputy came and tried to give CPR without
success.  Hallie was taken to a hospital
in an ambulance and CPR and other procedures were continued.  Hallie was pronounced dead at midnight on May
4, 2000.     Dr. Patricia Moore, the medical examiner, ruled Hallie=s death was a homicide due to complications from
blunt force trauma to the abdomen, even though there were no bruises to her
abdomen.  Dr. Moore did not determine her
death was intentional and offered no opinion as to who killed Hallie or what
caused the blunt trauma, except that the force on Hallie would be the same as a
child falling from a ten-story building onto a sharp or blunt object.  She testified that Hallie=s death was due to complications from blunt trauma
to the abdomen.   
Dr. Wilson testified he knew of no evidence that
Frank caused or knew of the original trauma to Hallie=s abdomen and disagreed with Dr. Moore that the
trauma was equivalent to a fall from a ten-story building or that it would have
caused a hole in Hallie=s intestine by compressing it against the spine.
Dr. Paul Radelat, a pathologist, did not feel the
autopsy findings supported a determination of homicide or abuse.
TDPRS referred appellant to Dr. Baldwin, a
psychologist.  Dr. Baldwin stated that
she absolutely opposed termination. 
According to Dr. Baldwin, the children should be returned to appellant
because she had good parenting skills, and Dr. Baldwin believed appellant would
be protective of the children.  




Chris Edwards, Hallie=s
biological father, told Frank after Hallie died that he appreciated the good
job Frank had done with the children. 
Appellant=s friend Carrie Murphy said she never saw Frank
become angry or violent during the time they lived together and never saw Frank
and appellant fight.  Appellant did not
feel the family argued excessively, and there was no unusual stress in the
household.
The jury found that the parent-child relationship
between appellant and J.L. should be terminated, but found that the
parent-child relationship between appellant and the infant should not be
terminated.  Also, the jury found that
the parent-child relationship between Frank and the infant should not be
terminated.  After the jury verdict the
trial court severed the case as to the infant.
Sufficiency of the Evidence
In the first three of thirteen issues, appellant
attacks the jury findings, contending the evidence is legally and factually
insufficient to establish, clearly and convincingly, that:  (1) she knowingly placed or knowingly allowed
the child to remain in conditions or surroundings which endangered the physical
or emotional well-being of the child; (2) she engaged in conduct or knowingly
placed the child with persons who engaged in conduct which endangered the
physical or emotional well-being of the child; and (3) termination was in the
best interest of the child.
In parent-child termination proceedings, there is a
strong presumption that the children=s best interest is usually served by keeping them
with their natural parents.  Wiley v.
Spratian, 543 S.W.2d 349, 352 (Tex. 1976). 
In Wiley it was held:




[T]he presumption is based upon a logical belief
that the ties of the natural relationship of parent and child ordinarily
furnish strong assurance of genuine efforts on the part of the custodians to
provide the child with the best care and opportunities possible, and, as well,
the best atmosphere for the mental, moral and emotional development of the
child.  The natural right which exists
between parents and their children is one of constitutional dimensions.  The presumptive right of parents is grounded
on good policy considerations.  
 
Id.  
A petition for involuntary termination of the
parent-child relationship may be granted if the court finds by clear and
convincing evidence that the parent has either: (1) knowingly placed or allowed
the child to remain in conditions or surroundings that endangered the physical
or emotional well-being of the child; or (2) engaged in conduct or knowingly
placed the child with persons who engaged in conduct that endangered the
physical or emotional well-being of the child; and (3) the termination is in
the best interest of the child.  Tex. Fam. Code Ann. ' 161.001(1)(D)(E),(2) (Vernon 2002).  




The heightened Aclear and convincing evidence@ burden of proof alters our legal sufficiency
review.  In re J.F.C., 96 S.W.3d
256, 256-66 (Tex. 2002); In re C.H., 89 S.W.3d 17, 25 (Tex. 2002).  In conducting a legal sufficiency review in
termination cases, we must review all the evidence in the light most favorable
to the finding and the judgment to determine Awhether
the evidence is such that a fact finder could reasonably form a firm belief or
conviction@ that the grounds for termination were proven.  In re J.F.C., 96 S.W.3d at
265-66.  In other words, we must assume
that the fact finder resolved disputed facts in favor of its finding if a
reasonable fact finder could do so.  Id.
at 266.  We must also disregard all
evidence that a reasonable fact finder could have disbelieved or found to have
been incredible.  Id.  This does not mean that a court must
disregard all evidence that does not support the finding, as this could skew
the analysis of whether there is clear and convincing evidence.  Id. 
We must consider undisputed evidence even if it does not support the
finding.  Id.  If we determine that no reasonable fact
finder could form a firm belief or conviction that the matter that must be
proven is true, then we must conclude that the evidence is legally insufficient
and render judgment in favor of the parent. 
Id.
The State argues that for purposes of termination
proceedings, a parent can endanger a child=s physical or emotional well-being without actually
injuring or threatening to injure the child, and that several courts have
upheld murder convictions based upon circumstantial evidence though the
convictions were proven under a higher burden of proof.  While it may be that some murder convictions
have been based on circumstantial evidence, the State has not cited any case
upholding a murder conviction or a child termination judgment based on
circumstantial evidence involving facts where an inference was based upon an
inference.  Cases cited by appellant hold
that the rule against piling inference upon inference is equally applicable in
civil cases as well as in criminal cases:
We recognize that proof of a conspiracy may be, and
usually must be made by circumstantial evidence, Jernigan v. Wainer, 12
Tex. 189 (1854), but vital facts may not be proved by unreasonable inferences
from other facts and circumstances, >No Evidence= and >Insufficient Evidence,= 38
Texas L. Rev. 359, 363; or, as often been said by this court, a vital fact
may not be established by piling inference upon inference, as would be
required in this case.  Rounsaville v.
Bullard, 154 Tex. 260, 276 S.W.2d 791(1955); Lobley v. Gilbert, 149
Tex. 493, 236 S.W.2d 121 (1951).  To
permit proof in this fashion, would violate the rule of Joske v. Irvine, 91
Tex. 574, 44 S.W. 1059 (1898), which requires proof of any vital fact by
evidence amounting to something more than a mere scintilla. 
 




Schlumberger Well Surveying Corp. v. Nortex Oil
& Gas Corp., 435 S.W.2d 854,
858 (Tex. 1958) (emphasis added). 
Quoting Summers v. Fort Crockett Hotel, Ltd., 902 S.W.2d 20, 25
(Tex. App.BHouston [1st Dist.] 1995, writ denied), the Amarillo
Court of Appeals held in Roth v. FFP Op. Partners, 994 S.W.2d 190 (Tex.
App.BAmarillo 1999, pet. denied), that the plaintiff=s evidence of causation was based only on
speculation:                          An ultimate fact may be established by
circumstantial evidence, but the circumstances relied upon must have
probative force sufficient to constitute a basis of legal inference.  It is not enough that the facts raise a mere
surmise or suspicion of the existence of the fact or permit a purely
speculative conclusion.  The
circumstances relied on must be of such a character as to be reasonably
satisfactory and convincing, and must not be equally consistent with the
non-existence of the ultimate fact.  
 
See id. at
197 (emphasis added).
We will review the evidence the State claims to be
relevant to the issue of parental termination. 
The State cites evidence regarding the Arough@ discipline of the children by Frank, and appellant=s disagreement and physical confrontation with him
over how he disciplined the children.[9]  In contrasting testimony, appellant had no
knowledge of Frank disciplining J.L. with a belt two or three times.   
The State further cites the Wal-Mart store mishap
wherein Frank, while holding the infant in a baby car seat at the front door
and unlocking the door, used his foot to push Hallie on her buttocks to get her
to go in the door.  Even if this action
were construed to be a Akick@ rather than a Apush,@ Frank testified that its purpose was to get Hallie
in the door, and it did not cause Hallie to fall.  Appellant testified that Frank pushed Hallie
with his foot, and the word Akick@ was used by Detective Sodolak in the statement he
wrote and she signed.  Appellant
disagreed with Frank and had a physical confrontation with him over Frank=s handling of Hallie=s
discipline.  




Even assuming Frank Akicked@ Hallie on the one occasion and Awhipped@ J.L. two or three times with a belt, we conclude
that such evidence is not sufficient to produce in the mind of the trier of
fact a firm belief or conviction that appellant knowingly placed or knowingly
allowed the child to remain in conditions, surroundings or with persons
endangering the physical or emotional well being of the child.  In re C.H., 89 S.W.3d at 22-24.  
The State does not define Arough@ or cite any authority that holds that Frank=s Arough@ treatment of the children was dangerous, illegal or
prohibited by any standards for disciplining children.  Neither can the Arough@ treatment incidents be used as evidence to
terminate appellant=s parental rights, or to infer that Frank killed
Hallie as alleged by the State, because the medical examiner and the
pathologist could not identify the cause of death and did not implicate
Frank.  
The autopsy report prepared by Dr. Moore, showed no
recent or old fractures.  A handwritten
addendum to the report, following a second examination, states Apossible fracture sites@ of two ribs, notes other previous abdominal
injuries, and concludes the cause of death was complications of blunt force trauma
to the abdomen, and the manner of death was homicide, without an opinion as to
who caused the blunt trauma or whether it was intentionally caused.  
In Dr. Moore=s testimony, she agreed that it was possible that CPR
improperly given to a two year old child could cause injury to the liver, but
was very unlikely.  




Dr. Paul Radelat, a pathologist, did not feel the
autopsy findings supported a determination of homicide or abuse, and his
opinion was that appellant did not violate any standard of care as the
situation unfolded during the hours preceding the call to 911[10]
or thereafter.  It was Dr. Radelat=s opinion that death most likely resulted from
complications of trauma to the abdomen, but the fibrous adhesions and foreign
body granuloma were consistent with an ongoing low-level intra-abdominal
process extending back in time to an uncertain beginning, and
confounding his interpretations was (1) the medical intervention by the
Community Fire Department EMS Service and by the father, each of whom performed
CPR beginning several hours prior to the official announcement of death, (2)
the possibility of a cerebral vascular accident at approximately eighteen
months of age with seizures super-imposed on a hypercoagualibility state, and
(3) as to the manifestations of disease as observed by others, the EMS
personnel noted only a distended abdomen with no obvious injuries.  (emphasis added).  
The criminal case against appellant=s husband is based on the same factual underpinnings
as this termination proceeding.  In the
criminal case, the State represented to the court that it was using Dr. Wilson
as its expert instead of Dr. Moore, who was the key witness in the termination
case.  Dr. Wilson=s testimony in the Daubert hearing indicates
the State=s change of position as well as a change of experts
as follows:
TDPRS Position                   Defense
Position                  State=s New Position
Termination                            Termination                            Criminal Case
 
Dr. Moore was an                 Dr.
Moore was not                State will
not 
expert on the matter              an
expert on many                 call Dr. Moore
she testified to                       of
the issues she                   as a
witness in
offered testimony on the
criminal case




Hallie=s death was                 Attacked
time esti-                Trauma to abdo-
caused by acute                    mate
and acute trauma        men led to
trauma to her abdo-              as
cause of death                 death one
to
men shortly before                                                                
several weeks
her death                                                                                later
 
Rupture of intestine               Rupture
of intestine    Rupture of intestine
was due to severe                 was
due to CPR                     was due to
blunt force trauma                                                                 
CPR
to the abdomen
 
Areas of acute bleed-           Areas of bleeding were        Areas
of bleeding
ing in various places             caused by CPR                     were
caused
in the chest and abdo-                                                          by
CPR
men were caused by
blunt force trauma, 
not by CPR
 
Posterior rib fractures           Rib fractures were                 Rib
fractures 
are indicators of abuse        likely caused by an    were
likely 
and were not caused by       accidental fall from                caused
by an
a fall from a merry-go-          a merry-go-round                  accidental
fall
round                                                                                      from
a merry-
go-round
 
Frank either inflicted             There is no evidence            There
is no evidence
the trauma to the                   Frank
caused or saw            Frank caused
or  
abdomen or saw it                the
injury to Hallie=s   knew of the
original 
happen and covered             abdomen                                trauma to 
it up                                                                                         Hallie=s abdomen 
 
The force which                     The
intestinal hole                  The
intestinal
caused the trauma                was
caused by CPR  hole was caused
was equivalent to                                                                  
by CPR, and
a fall from a 10 story                                                              was not
caused
building                                                                                   
by the spine
 pressing
against
 the intestine
 




The State argues that even though there was no
direct or eye witness evidence, that there was at least clear and convincing
circumstantial evidence that Frank caused the injuries that led to Hallie=s death. 
However there is no evidence that Frank intentionally or negligently
inflicted any blunt trauma or injury on any part of Hallie=s body which, in medical probability, caused her
death.  The State claims there is
circumstantial evidence to convict Frank for homicide in the death of
Hallie.  We do not agree.  The record does not establish where or how
Hallie was injured or who had supervision of her at the time she was injured.  There is no clear and convincing evidence in
the record to support the State=s accusation that Frank killed Hallie or that
appellant failed to promptly seek medical attention for Hallie.
The State claims there were two other incidents of Aaggression@ and Asuspicious medical problems,@ but admits that these incidents were ruled out as
abuse at the time.  TDPRS found the
referrals of the incidents were unfounded. 
These incidents cannot be used to support the termination issues
submitted to the jury even as circumstantial evidence.  
To use circumstantial evidence to support the State=s theory would require an inference that Frank
intentionally inflicted the blunt trauma which caused Hallie=s death merely because of his relationship with her
and because he had the opportunity to do so. 
Using circumstantial evidence would require a further inference that
appellant knew Frank intentionally inflicted the injury, if any, which caused
Hallie=s death, and that appellant condoned it and
concealed it.  




Such a string of inferences merely raises surmise or
suspicion and does not have probative force to constitute a basis of legal
inference.  Roth, 994 S.W.2d at
197.   For a legal inference to arise,
the circumstances relied on must be of such a character as to be reasonably
satisfactory and convincing, and must not be equally consistent with the
non-existence of the ultimate fact.  Id.  Moreover, meager circumstantial evidence from
which equally plausible but opposite inferences may be drawn is speculative,
and thus legally insufficient to support a finding.  Wal-Mart Stores, Inc. v. Gonzalez, 968
S.W.2d 934, 936 (Tex. 1998).
In the instant case, Frank lived in the same home
with Hallie and shared with appellant her discipline during the time period in
question, but many others during such period of time had an opportunity to harm
Hallie.  The evidence adduced at trial
supports other inferences.  First, Hallie=s death could have resulted from a cerebral vascular
accident when she was approximately eighteen months old with seizures
super-imposed on a hypercoagualibility state as related by Dr. Radelat.  Or, another stroke may have caused Hallie=s death.
Second, the blunt trauma to Hallie could have been
caused by accidents suffered because of her impairment.  On March 31, 2000, she fell off a
merry-go-round, possibly breaking her ribs, and on April 15, 2000, she fell
down the stairs at Frank and appellant=s wedding. 
Dr. Wilson, the State=s new expert in the criminal cases, concluded,
contrary to Dr. Moore, that: (1) Hallie=s rib fractures were probably caused by the fall
from a merry-go-round; (2) Hallie=s death was not caused by acute trauma to the
abdomen occurring shortly before death; (3) Hallie=s death was the end result of a Achronic event@ occurring one to several weeks before the child=s death; and (4) the injury caused adhesions to form
in the intestines, and the adhesions obstructed the fecal stream and caused a
progressively toxic state.  
Third, the blunt trauma to Hallie could have been
the result of an accident while playing with J.L.  Frank spanked J.L. with a belt as punishment
for hitting Hallie in the head with a plastic T-ball bat. 




Fourth, Hallie=s death could have resulted from the symptom-free
fibrous adhesions and foreign body granuloma consistent with an ongoing low
level intra-abdominal process extending back in time to an uncertain beginning
as related by Dr. Radelat.
Fifth,  Hallie=s death could have resulted from damage to the liver
during attempted CPR by the EMS service and Frank to save Hallie=s life several hours prior to the official
announcement of her death as related by Dr. Radelat.  Dr. Wilson, testified, contrary to Dr. Moore,
that the rupture of the intestine was not caused by some deliberate or
accidental trauma before the child became critically ill, but instead was
caused by improperly performed CPR after the child became critically ill, and
the areas of acute bleeding in various organs in the abdomen and chest were
likely caused by CPR.  Also, Dr. Wilson
concluded that CPR was an appropriate response by appellant.
Dr. Wilson testified that he did not know when or
how the trauma to Hallie=s abdomen occurred, and he knew of no evidence that
Frank caused or knew of the original trauma to Hallie=s abdomen. 
Dr. Wilson testified that he did not agree with Dr. Moore that the
trauma was equivalent to a fall from a 10 story building or that it would have
caused a hole in the intestine by compressing it against the spine.




It cannot be inferred from the belt whippings and
the incident of rough discipline by Frank that he endangered Hallie or the
other children, or that appellant knew she was subjecting the children to
danger because of acquiescing to Frank=s discipline of the children.  Appellant was not negligent in seeking
medical treatment for Hallie during her last illness, and her conduct in such
regard did not endanger Hallie.  There
was no evidence nor any reasonable inference that Frank caused Hallie=s death or endangered any of the children.
Viewing the testimony in the light most favorable to
the judgment, as we must, we conclude that the fact finder could not reasonably
have formed a firm belief or conviction that the ground for termination was
proven.  In re J.F.C., 96 S.W.3d
at 266.  We conclude there is no evidence
that appellant knowingly placed or knowingly allowed her child to remain in
conditions or surroundings which endangered the physical or emotional
well-being of the child, and there is no evidence that appellant engaged in
conduct or knowingly placed the child with persons who engaged in conduct which
endangered the physical or emotional well-being of the child.  See Tex.
Fam. Code Ann. ' 161.001(1)(D), (E) (Vernon 2002).  The jury could not infer from the
circumstantial evidence that appellant violated any subsection of section
161.001.  The jury found that appellant
did not violate either subsection (D) or (E) as to the infant, which defies
understanding or explanation given its finding regarding J.L.  There being no violations of subsection (1)
of section 161.001, neither the jury nor the trial court could find or deem
that termination was in the best interest of J.L. under subsection (2) because
findings under both subsections are required. 
See Tex. Fam. Code Ann.
' 161.001 (Vernon 2002).
The above mentioned findings of the jury are set
aside.  Appellant=s issues numbers one, two and three are
granted.  It is unnecessary to discuss
and rule on the remaining ten issues.  See
Tex. R. App. P. 47.1.




The trial court=s judgment terminating the parent-child relationship
between appellant and J.L., appointing Chris Edwards as J.L.=s sole managing conservator, and changing J.L.=s name, is hereby reversed and rendered, and
appellant=s full parental rights and obligations as to J.L.
are hereby restored to her; and J.L.=s original name is restored.  See In re J.F.C., 96 S.W.3d at 266.                                                                                                                                                                                                                                                                                                                                       
 
__________________________
MAURICE AMIDEI, JUSTICE
(Assigned)
 

Opinion delivered and filed
this the 12th of February, 2004.
 
 
 
 
 
 




[1]Retired Justice J. Bonner Dorsey,
who had been assigned to this Court by the Supreme Court of Texas pursuant to
section 74.003 of the government code, and whose assignment expired on August
31, 2003, did not participate in this decision. 
See Tex. Gov=t Code Ann. ' 74.003 (Vernon Supp. 2004).


[2]Former Fourteenth Court of Appeals
Justice Maurice Amidei assigned to this Court by the Chief Justice of the
Supreme Court of Texas pursuant to the government code.  See Tex.
Gov't Code Ann. ' 74.003 (Vernon Supp. 2004).
 


[3]Section 263.405(a) provides in
pertinent part: AAn appeal of a final order rendered
under this subchapter is governed by the rules of the supreme court for
accelerated appeals in civil cases and the procedures  provided by this section.@ 
Tex. Fam. Code Ann. ' 263.405 (Vernon 2002).  Rule 26.1(b) of the Texas Rules of Appellate
Procedure provides that in an accelerated appeal, the notice of appeal must be
filed within 20 days after the judgment or order is signed.  See Tex.
R. App. P. 26.1(b). 


[4]Rule 329b(a) of the Texas Rules of
Civil Procedure provides: AA motion for new trial, if filed, shall be filed prior to
or within thirty days after the judgment or other order complained of is
signed.@ 
Tex. R. Civ. P.
329b(a).    


[5]Rule 329b(e) of the Texas Rules of
Civil Procedure provides: A If a motion for new trial is timely filed by any party,
the trial court, regardless of whether an appeal has been perfected, has
plenary power to grant a new trial or to vacate, modify, correct, or reform the
judgment until thirty days after all such timely filed motions are
overruled, either by a written and signed order or by operation of law,
whichever occurs first.@ 
(emphasis added).  See Tex. R. Civ. P. 329b(e).


[6]Any change, whether or not material
or substantial, made in a judgment while the trial court retains plenary power,
operates to delay the commencement of the appellate timetable until the date
the modified, corrected or reformed judgment is signed. Check v. Mitchell, 758
S.W.2d 755, 756 (Tex. 1988); Quanaim v. Frasco Rest. & Catering, Inc.,17
S.W.3d 30, 35-40 (Tex. App.BHouston [14th Dist.] 2000, pet. denied); see Tex. R. Civ. P.. 329b(h). 


[7]State v. Frank Chavez, Cause No. 33,424A (original
charge of capitol murder of Hallie Lohner was changed to injury to a child); State
v. Bettina Chavez, Cause No. 33,422 (injury to a child), are pending in the
268th Judicial District Court of Fort Bend County.


[8]See, e.g., Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592-93 (1993).
 


[9]TDPRS found that Frank did not
abuse J.L. when he spanked him with a belt leaving a bruise on his hand.


[10]He did not believe Hallie=s symptoms were sufficient to alert
the family to the need for emergency care.


