                       In the
                  Court of Appeals
          Second Appellate District of Texas
                   at Fort Worth
                ___________________________
                     No. 02-20-00045-CV
                ___________________________

IN THE INTEREST OF K.E., K.E., D.T., AND K.E., THE CHILDREN


             On Appeal from the 362nd District Court
                     Denton County, Texas
                  Trial Court No. 18-4395-362


          Before Sudderth, C.J.; Womack and Wallach, JJ.
            Memorandum Opinion by Justice Wallach
                            MEMORANDUM OPINION

       This is an ultra-accelerated appeal 1 in which Appellant K.T. (Mother) appeals the

termination of her parental rights to three of her children (Kent, David, and Kevin) and

her appointment as parent possessory conservator of her oldest child (Kendra),2

following a jury trial.3 Mother raises one issue with two parts. In the first part, Mother

argues that she failed to receive due process when the trial court denied her access to

most of her children during the case without an initial hearing or a review hearing. In

the second part, Mother argues that the trial court failed to exclude the order denying

her access to her children and testimony related to that order and failed to declare a

mistrial, and that such failures resulted in an unfair comment on the weight of the

evidence and unduly prejudiced the jury’s findings as to endangerment by Mother and

as to the best interests of the children. We affirm.




       See Tex. R. Jud. Admin. 6.2(a) (requiring appellate court to dispose of appeal
       1

from a judgment terminating parental rights, so far as reasonably possible, within
180 days after notice of appeal is filed).
       2
         See Tex. R. App. P. 9.8(b)(2) (requiring court to use aliases to refer to minors in
an appeal from a judgment terminating parental rights). The children are thus referred
to using aliases. We refer to other family members by their relationship to the children.
See id. (requiring courts, if needed to protect the minors’ identities, to also use aliases
when referring to family members); see also Tex. Fam. Code Ann. § 109.002(d).
       3
        The father of Kendra, Kent, and Kevin, whose parental rights were terminated
in the proceedings below, did not appeal. We will refer to him as Father. Mother had
adopted David. The termination of the paternal rights, if any, of David’s father, was not
adjudicated in the proceedings below.


                                             2
                                   I.     Background4

      In May 2018, the Department of Family and Protective Services (the

Department) obtained an order of protection and removed Kendra, Kent, David, and

Kevin from their Mother’s care; the Department had received several referrals reporting

the withholding of food and sexual and physical abuse taking place in Mother’s home.5

The Department filed a first amended petition for conservatorship and to terminate

Mother’s parental rights (and the parental rights of Kendra, Kent, and Kevin’s father)

in June 2018. In June 2018, the trial court held an adversary hearing. That same day, the

trial court signed a Temporary Order Following Adversary Hearing appointing Mother

as temporary possessory conservator of the children.

      In July 2018, the trial court held a Status Hearing. The Department filed a Family

Service Plan for Mother and a Status Report earlier that day. That same day, the trial

court signed a Status Hearing Order. The order provided that the trial court “reviewed

the Visitation Plan provided by the Department.” Under the heading, “Visitation Plan:

[Mother],” the trial court found that Mother’s visitation with the children must be

supervised and stated that the trial court “further finds that [Mother] must take the



      4
        Mother does not challenge the sufficiency of the evidence supporting the trial
court’s judgment. Thus, we limit our background discussion to those events necessary
to provide Mother’s arguments on appeal context.
      5
       Other children in the home, who were Mother’s nieces and nephews and not
her biological or adopted children, were also removed.


                                           3
following specific steps to have level of supervision reduced,” but then the order left a

blank space. Also under that heading, and the focal point of this appeal, is the

handwritten language: “Visitation will be suspended pending recommendation from the

children’s therapist as to [Kendra, Kent, and David]. Visitation with [Kevin, the

youngest child] shall be one hour per week supervised by the [Department.]”

        Almost a week later, the Department filed a Visitation Plan (that had been signed

a day earlier than the filing). That plan provided that “the parent[-]child visit is strictly

held between [Mother] and [Kevin]; none others” and that “[a]ll visits must be

supervised by the Department or an approved supervisor or observer.” The next

hearing involving Mother was a permanency hearing in November 2018.

        In October 2019, the trial court held a pretrial hearing and granted Mother’s

motion in limine regarding “[a]ny references to any findings made by the Court.” The

case was tried to a jury over eight days, starting in October 2019 and resuming in January

2020.

        After trial, the trial court signed a final order in accordance with the jury findings

that terminated Mother’s parental rights to Kent, David, and Kevin, and that appointed

the Department as managing conservator and Mother as possessory conservator of




                                              4
Kendra.6 Just over two weeks later, the trial court signed an amended final order. This

appeal followed.

                     II.    Mother’s Due-Process Complaints

      Mother raises a single issue on appeal that has two parts. In the first part, Mother

argues that the trial court denied her due process when it denied her access to most of

her children during the case without an initial hearing or a review hearing. Because

Mother’s complaints about any temporary orders are rendered moot by the final order,

we resolve this part of Mother’s issue against her.

A.    Mother’s due-process arguments focus on the visitation restrictions
      imposed by the trial court’s temporary Status Hearing Order.
      Mother’s due-process arguments revolve around the temporary Status Hearing

Order and the handwritten language suspending Mother’s visitation with her three older

children “pending recommendation from the children’s therapist” and limiting her

visitation with her youngest child to “one hour per week supervised by the

[Department.]” Mother contends that prior to the Status Hearing, she had “visited all

of her children” after their removal pursuant to the prior temporary schedule and that

the Department’s position on visitation changed the day of the Status Hearing without

explanation.



      6
        Mother states in her brief that the jury found that it was in the youngest child’s
(Kevin’s) best interest for Mother to continue her relationship with him, her youngest
child. The jury made this finding, however, with respect to only Kendra.


                                            5
      In making her due-process arguments, Mother challenges whether the trial court

complied with Sections 263.1087 and 263.109(a) and (b) 8 of the Texas Family Code,

whether the Department presented evidence at the Status Hearing or at the following

Permanency Hearing that supported the visitation restrictions imposed by the Status

Hearing Order,9 and whether the visitation restrictions imposed in the Status Hearing

Order were logical.10 She further argues that the handwritten notation giving the

children’s therapist the authority to decide whether she may have visitation with the

three older children “effectively denied [Mother] all access to three of her children,



      7
       Mother quotes Section 263.108 of the Texas Family Code to argue that the trial
court was required to review the Department’s Visitation Plan “[a]t the first hearing
held under this chapter after the date an original or amended visitation plan was filed
with the court.” See Tex. Fam. Code Ann. § 263.108(a). Although the Status Hearing
Order stated that the trial court had reviewed the plan, Mother argues that the plan was
not drafted or filed with the court until days after the Status Hearing and that the plan
was not reviewed at the November 2018 hearing.
      8
       Mother argues that the Status Hearing Order did not state the reasons for
finding that visitation was not in the children’s best interests or outline specific steps
she must take to be allowed visitation. See Tex. Fam. Code Ann. § 263.109(a), (b).
      9
       Although the Status Hearing Order stated that the trial court had “reviewed the
summary of medical care provided to the subject children,” Mother argues that such
information was not presented through expert testimony or admissible documents at
the Status Hearing and that such information also was not all contained within the
Department’s Status Report.
      10
         Mother contends that the trial court’s decision to prevent her from having
access to her three oldest children was “illogical” and “contrary to reason and erroneous
as a matter of law” because it appointed her possessory conservator in the first place
and because the court allowed her access to the youngest child.


                                            6
while also denying her the remedy of contempt” because it gave the “the Department

and its contractors (not the court or [Mother]) complete discretion as to [her] access to

her children.” According to Mother, the complete denial of her parental access

amounted to a near-termination of parental rights. Mother contends that she was

effectively denied her right of cross-examination because “[w]hatever the psychiatric

evidence the trial court believed may have justified preventing [her] from regularly

visiting with her children, such evidence was not presented at a hearing before the

court.”

       For all of these reasons, Mother invokes the due-process clauses of the United

States and Texas constitutions to argue that her due-process rights were violated

because the trial court failed to state the reasons for its findings in the Status Hearing

Order and failed to hold a hearing to admit evidence in favor of such findings.

According to Mother, the trial court precluded her review and cross-examination of

evidence supporting the cessation of visitation and issued a “blanket denial of access in

its Status Hearing Order,” focusing “exclusively on the children’s immediate best

interest” and “without regard to [Mother’s] rights or the children’s long-term

interest[s].”

B.     Mother’s complaints about the temporary Status Hearing Order are moot.
       We do not reach the merits of Mother’s arguments because we conclude that her

complaints are moot. “[A] temporary order is superseded by the entry of a final order

of termination, rendering moot any complaint about the temporary order.” In re J.F.G.,

                                            7
III, 500 S.W.3d 554, 559 (Tex. App.—Texarkana 2016, no pet.) (brackets in original);

see also In re Z.R.M., No. 04-15-00063-CV, 2015 WL 4116049, at *5 n.5 (Tex. App.—

San Antonio July 8, 2015, no pet.) (mem. op.) (holding that appellant’s complaints about

child’s removal are not proper in the context of an appeal from a final order terminating

parental rights); In re D.W., Nos. 01-13-00880-CV, 01-13-00883-CV, 01-13-00884-CV,

2014 WL 1494290, at *3 (Tex. App.—Houston [1st Dist.] Apr. 11, 2014, no pet.) (mem.

op.) (holding that appellants’ complaints regarding temporary orders appointing the

Department as children’s temporary sole managing conservator were moot because a

final decree had been entered in each of the children’s cases); In re C.R.J., No. 06-13-

00053-CV, 2014 WL 199209, at *2 (Tex. App.—Texarkana Jan. 17, 2014, no pet.)

(mem. op.) (holding that appellant’s complaints about a trial court’s holding of a

temporary hearing or issuing temporary orders were rendered moot by the entry of a

final modification order); In re M.C.M., 57 S.W.3d 27, 37 (Tex. App.—Houston [1st

Dist.] 2001, pet. denied) (holding that temporary order denying visitation was moot in

light of trial court’s final judgment terminating appellants’ parental rights).

       Because the Status Hearing Order is a temporary order and because a final order

was entered in this case, Mother’s due-process complaints are moot. In re B.U., No. 02-

15-00051-CV, 2016 WL 4474337, at *2 (Tex. App.—Fort Worth Aug. 25, 2016, pet.

denied) (mem. op.) (citing Wright v. Wentzel, 749 S.W.2d 228, 234 (Tex. App.—Houston

[1st Dist.] 1988, no writ), and Conway v. Irick, 429 S.W.2d 648 (Tex. App.—Fort Worth

1968, writ ref’d)); In re P.R., 994 S.W.2d 411, 417 (Tex. App.—Fort Worth 1999, pet.

                                             8
dism’d w.o.j.), disapproved on other grounds, In re J.F.C., 96 S.W.3d 256, 267 n.39 (Tex.

2002).

         Accordingly, we overrule the first part of Mother’s sole issue.

          III.    Mother’s Complaints Regarding Trial Evidentiary Rulings

         In the second part of her sole issue, Mother argues that the trial court failed to

exclude the Status Hearing Order and “related testimony” and that the trial court failed

to declare a mistrial. Mother argues that the erroneously admitted evidence violated

Texas Rule of Evidence 605 and constituted an improper comment on the weight of

the evidence. We resolve this part of Mother’s sole issue against her.

A.       Additional background: Testimony at issue on appeal and Mother’s
         motion for mistrial.
         The trial testimony that Mother complains about on appeal begins with the

following testimony from the Department’s caseworker during her examination by the

attorney ad litem for some of the children:

                 Q.   What visits were the parents having?
               A.     [Mother] had . . . visits with [Kevin], a few of them that
         occurred. I believe in the eight months we had about three visits.
                Q.    So during this eight-month period that she called about three
         times to check on the kids, she saw [Kevin] three times.
                 A.   Correct.
                 Q.   Did she see [Kent] or [David]?
                 A.   No.




                                              9
Mother also points to the following additional testimony during the caseworker’s re-

direct examination by the Department:

            Q.     . . . . Now, you told [the children’s attorney] that there had
      been three visits with [Kevin].
               A.   Correct.
               Q.   No visits with the other children.
               A.   Correct.
              Q.    And what were you waiting on so that you could implement
      visits with those kids?
               A.   Recommendations from the therapist.
           Q.   Okay. So at the point that you had the case, a therapist had
      recommended no visits.
               A.   Prior to me having the case, yes.
               Q.   Okay. That’s kind of unusual in a CPS case. Would you
      agree?
               [MOTHER’S ATTORNEY]: Objection to speculation.
               THE COURT: Overruled.
               A.   Yes.
             Q.    . . . . The point of the visits is really more for the kids than
      the parents. Would you agree with that?
               A.   Yes.
             Q.     And so a therapist—a lot of therapists had recommended
      that visits were not a good idea.
               A.   Correct.
             Q.     All right. Do you know whether those visits have ever been
      reinstated?


                                           10
              A.    I don’t believe they have.
The Department’s attorney then asked, “You used the words ‘substantial evidence’

when you were talking about the Department and [Mother], [Father] agreeing or

disagreeing. What did you mean by ‘substantial evidence’?” At that point, Mother’s

attorney asked to approach, and the trial court excused the jury.

       Mother’s attorney argued that the “line of questioning specifically regarding the

visits being reinstated, the visits being stopped” violated the limine order regarding any

references to findings made by the court. She added that “asking that question and

asserting that the visits were reinstated, indicating that they had been stopped” invaded

the province of the jury. Mother’s attorney asked the trial court to instruct the jury to

disregard the question, “Do you know whether those visits have ever been reinstated,”

and the witness’s answer to that question. The trial court granted that request and later

instructed the jury accordingly. But the trial court denied Mother’s attorney’s motion

for a mistrial.

       After the trial court denied the motion for mistrial and while still outside the

jury’s presence, the Department moved to admit a copy of the Status Hearing Order

into evidence that redacted most of the paragraphs under “Findings” (in accordance

with the limine order). Father’s attorney objected on grounds that the handwritten




                                           11
language restricting his visitation 11 could be construed as a comment on the evidence

by the court and invaded the province of the jury. Mother’s attorney joined in the

objections, which the trial court overruled.

B.    We review a trial court’s ruling on the admission of evidence and on a
      motion for mistrial for an abuse of discretion.
      The admission or exclusion of evidence is committed to the trial court’s sound

discretion. See In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005); In re M.R., No. 02-15-00221-

CV, 2015 WL 6759249, at *6 (Tex. App.—Fort Worth 2015, no pet.) (mem. op.). We

also review a trial court’s denial of a motion for mistrial under an abuse of discretion

standard. In re M.N.G., 147 S.W.3d 521, 530 (Tex. App.—Fort Worth 2004, pet. denied)

(op. on reh’g). A trial court abuses its discretion if it acts without reference to any

guiding rules or principles—that is, if it acts arbitrarily or unreasonably. In re J.B.,

No. 02-18-00034-CV, 2018 WL 3289612, at *6 (Tex. App.—Fort Worth July 5, 2018,

no pet.) (mem. op.) (citing Gharda USA, Inc. v. Control Sols., Inc., 464 S.W.3d 338,

347 (Tex. 2015)); see also In re A.B., No. 02-14-00384-CV, 2015 WL 1967286, at *3 (Tex.

App.—Fort Worth Apr. 30, 2015, no pet.) (mem. op.); M.N.G., 147 S.W.3d at 530.




       The Status Hearing Order suspended Father’s visitation as to all children
      11

pending recommendation from the children’s therapist.


                                            12
C.     Neither the caseworker’s testimony nor the redacted Status Hearing
       Order violated Rule 605.
       We first address Mother’s complaint that the admission of the caseworker’s

testimony and the redacted Status Hearing Order violated Texas Rule of Evidence 605.

Under Texas Rule of Evidence 605, “[t]he presiding judge may not testify as a witness

at the trial.” Tex. R. Evid. 605. A “finding of fact” is a “determination by a judge . . . of

a fact supported by the evidence in the record.” In re M.S., 115 S.W.3d 534, 538 (Tex.

2003) (citing Black’s Law Dictionary 646 (7th ed. 1999)). Although “findings of fact”

are not technically testimony, “orders submitted into evidence, containing findings

based on pretrial evidence by the very judge presiding over the termination proceeding,

could be, like a judicial comment on the weight of the evidence, a form of judicial

influence no less proscribed than judicial testimony.” In re A.T.K., No. 02-11-00520-

CV, 2012 WL 4450361, at *4 (Tex. App.—Fort Worth Sept. 27, 2012, no pet.) (mem.

op.) (quoting M.S., 115 S.W.3d at 538). “The question should be whether the judge’s

statement of fact is essential to the exercise of some judicial function or is the functional

equivalent of witness testimony.” In re C.C.K., No. 02-12-00347-CV, 2013 WL 452163,

at *33 & n.45 (Tex. App.—Fort Worth Feb. 7, 2013, no pet.) (mem. op.) (citing

Hammond v. State, 799 S.W.2d 741, 746 (Tex. Crim. App. 1990), and noting that in Bradley




                                             13
v. State ex rel. White, 990 S.W.2d 245, 248 (Tex. 1999), the Supreme Court of Texas relied

on Texas Court of Criminal Appeals’s interpretations of Rule 605).

      Mother argues that “[b]y allowing testimony of the cessation of visits and

admitting the Status Hearing Order with the text demanding such cessation, the jury

was effectively told that the judge had already determined that [Mother] had endangered

her children and that the judge had determined” that the children’s removal from her

possession was in the children’s best interests. She focuses on the fact that the majority

of paragraphs under the heading “Findings” were redacted, arguing that the redactions

implied that “such judicial determinations were based upon evidence [(that, as explained

above, she says was never presented)] and [the redacted] findings.”

      We do not agree that the admission of the Status Hearing Order violated

Rule 605. The Status Hearing Order did not contain any factual findings by the

presiding judge that Mother had endangered her children or that the children’s removal

from her possession was in the children’s best interests. Rather, the handwritten

statements added to the order were essential to the judge’s judicial function of reviewing

and modifying a visitation plan. See Tex. Fam. Code Ann. §§ 263.108, .202. Neither the

handwritten language added to the Status Hearing Order nor the existence of redactions

under “Findings” provided testimony as to facts disputed during the trial. See In re

A.L.W., No. 02-11-00480-CV, 2012 WL 5439008, at *11 (Tex. App.—Fort Worth

Nov. 8, 2012, pet. denied) (mem. op.). On this record, we conclude that the admission

of the Status Hearing Order with the handwritten language regarding visitation

                                           14
limitations, even with the redacted findings, was not the functional equivalent of witness

testimony.

       Mother cites In re T.T., 39 S.W.3d 355 (Tex. App.—Houston [1st Dist.] 2001, no

pet.), in support of her Rule 605 argument, but the facts of that case are distinguishable.

In T.T., the temporary order contained the following express findings that were made

by the same judge who presided over the trial:

       The Court specifically finds and all parties agree that the following orders
       for the safety and welfare of the children are in the best interest of the
       children:
       The Court finds pursuant to Tex. Fam. Code Sec. 262.201:
       (1) there was a danger to the physical health or safety of the children which
           was caused by an act or failure to act of the person(s) entitled to
           possession and for the children to remain in the home is contrary to
           the welfare of the children;
       (2) the urgent need for protection required the immediate removal of the
           children and makes efforts to eliminate or prevent the children’s
           removal impossible or unreasonable; and
       (3) notwithstanding reasonable efforts to eliminate the need for the
           children’s removal and enable the children to return home, there is a
           substantial risk of a continuing danger if the children are returned
           home.
Id. at 358. On these facts, the appellate court held that the “trial judge’s findings harmed

[the appellant] because they told the jury that the trial judge had already decided [the

appellant] could not protect her children, the very question the jury had to decide.” Id.

at 359. The Status Hearing Order in this case, however, does not contain any express

findings similar to those in T.T. Mother cites no authority standing for the proposition



                                            15
that Rule 605 applies when a jury could merely infer from redactions that a presiding

judge had made findings that are not expressly set forth in the order admitted into

evidence.12

      Moreover, it is within the zone of reasonable disagreement as to whether the

mere existence of redactions under “Findings” in the Status Hearing Order would cause

a jury to infer that the presiding judge had found, as Mother contends, that Mother had

endangered her children and that the children’s removal from her possession was in the

children’s best interests, even in light of the handwritten language added to the order

regarding visitation. Indeed, Mother does not point to any testimony or argument at

trial where anyone drew any such connection between the redactions and the


      12
         We also note that the judge who presided over the Status Hearing and who
signed the Status Hearing Order (the Hon. Monte O. Lawlis) was not the same judge
who presided over the trial (the Hon. Bruce McFarling). This fact alone may defeat
Mother’s Rule 605 argument. See Tex. R. Evid. 605 (“The presiding judge may not testify
as a witness at the trial.”) (emphases added). Rule 605, however, was amended in 2015;
prior to that amendment, Rule 605 provided that “[t]he judge presiding at the trial may
not testify in that trial as a witness.” See Hensarling v. State, 829 S.W.2d 168, 170 (Tex.
Crim. App. 1992) (quoting prior version of Rule 605 (emphases added)). Texas courts
interpreted the prior version of Rule 605 as not applying to judges who were not the
judge presiding at the trial. See id., at 170–71; see also In re S.G.S., 130 S.W.3d 223,
242 (Tex. App.—Beaumont 2004, no pet.) (holding that the prior version of Rule
605 did not apply to the admission of a Temporary Order Following Adversary Hearing
or a Status Hearing Order because they were signed by a judge who was not the judge
presiding over the trial). No party addresses the fact that Judge Lawlis signed the order
at issue but did not preside over the trial. Regardless, any question about whether the
2015 amendment expands the scope of Rule 605 to reach a judge who had previously
presided over a hearing but was not the judge presiding over the trial is not necessary
for the disposition of this appeal because we would reach the same outcome in either
instance. See Tex. R. App. P. 47.1.


                                            16
handwritten language in the order. The closest Mother comes is her reference to the

following portion of an attorney ad litem’s closing argument:

      [Mother’s] actions here in this trial, they’ve been acts of self-preservation,
      not love. They’ve been acts of, “It wasn’t my fault this didn’t get done; it
      was the providers’ fault. It was someone else’s fault. I don’t know why I
      didn’t call you, but maybe I didn’t have your number. I have so many
      numbers.”
             ....
             You’re not seeing your kids? You’re not calling me to check on them?
      I’ve given you my card. [Emphasis added.]
Mother argues that in making this statement, the children’s attorney ad litem “directed

the jury to the issue” and mocked Mother. We disagree.

      The attorney ad litem’s closing argument did not mention the Status Hearing

Order or the redacted findings, nor did the attorney suggest to the jury any inferences

to draw from that order. Instead, it is apparent, particularly when viewed in context,

that the attorney ad litem’s remarks were making the point that Mother was deflecting

responsibility of her own choices onto others and were attacking Mother’s credibility.

Immediately prior to the argument quoted above, the attorney ad litem argued:

      Now, [Mother] begged you guys for a chance. She said she loves these
      kids. But her actions that you’ve heard about, her actions that the kids
      have testified about, the kids who lived in that home with her every day
      and with [Father] every day, that’s not love.
Then, immediately following the portion of the argument quoted by Mother, the

attorney ad litem argued: “Here in trial she’s taken no responsibility for what’s happened

to these kids, for the things they’ve testified about, and offered no explanation, just it


                                           17
didn’t happen.” 13 Accordingly, we conclude that the trial court’s admission of the

redacted Status Hearing Order did not violate Rule 605.

      As to the caseworker’s testimony, the caseworker did not testify as to any

findings contained in the Status Hearing Order, nor did she even reference that or any

other court order.14 Although the parties and the court knew when the caseworker

testified that the Status Hearing Order had imposed the conditions on visitation set

forth by the handwritten language in the order, such information was not conveyed to

the jury by the caseworker’s testimony. Instead, the caseworker’s testimony focused on

a therapist serving as the gatekeeper of the children’s visitation with Mother. Although a

question posed to the caseworker asked about visits being “reinstated,” neither the

question nor the answer informed the jury that a judge, as opposed to a therapist, held




      13
         Mother points to the following two questions from the jury during deliberations
to also argue that “[c]learly, the jury was interested in this relationship”: (1) “Does
termination of a parent’s rights result in the parent having no contact/visitation with
the child?” and (2) “If one parent’s rights are terminated and [the] other becomes
managing conservator, can the parent as managing conservator allow visitation/access
[with] the children?” Although the questions concerned the topic of visitation, they did
not ask about any findings or comments made by a judge who presided in the case; they
asked about a parent’s future visitation rights under different scenarios.
      14
         We note that Mother did not object on Rule 605 grounds to the above-quoted
questions or answers from the caseworker’s testimony. Rule 605, however, expressly
states, “[a] party need not object to preserve the issue.” Tex. R. Evid. 605. We assume
without deciding that a party may raise an issue on appeal about a question or answer
violating Rule 605 without a timely objection in the trial court, even if the witness (such
as the caseworker here) who was testifying at trial was not the presiding judge.


                                            18
the keys to visitation. Accordingly, we likewise conclude that the caseworker’s

testimony did not violate Texas Rule of Evidence 605.

D.     To the extent Mother preserved anything for appellate review, the trial
       court did not err by admitting evidence over Mother’s improper-
       comment-on-the-weight-of-the-evidence objection or by denying
       Mother’s motion for mistrial.
       We now turn to Mother’s arguments that the admission of the redacted Status

Hearing Order and the caseworker’s testimony constituted improper comments on the

weight of the evidence and that the trial court failed to exclude such evidence and failed

to grant her motion for mistrial.

       1.     It was within the zone of reasonable disagreement as to whether the
              admission of the Status Hearing Order constituted an improper
              comment on the weight of the evidence.
       As to the Status Hearing Order, we conclude that the trial court acted within its

discretion by admitting that order. 15 A comment on the weight of the evidence may

take many forms, but the Supreme Court of Texas specifically prohibits “judicial

comments that indicate the opinion of the trial judge as to the verity or accuracy of the facts

in inquiry.” M.S., 115 S.W.3d at 538 (emphasis added) (quoting McDonald Transit, Inc. v.

Moore, 565 S.W.2d 43, 45 (Tex. 1978)); see also In re Commitment of Shelton, No. 02-19-




       15
          Mother’s motion for mistrial was based solely on the caseworker’s testimony
because the Department had not yet moved to admit the Status Hearing Order when
the trial court ruled on the motion. Thus, we will not analyze the admission of the Status
Hearing Order with respect to the motion for mistrial.


                                              19
00033-CV, 2020 WL 1887722, at *12 n.7 (Tex. App.—Fort Worth Apr. 16, 2020, no

pet. h.) (mem. op. on reh’g); C.C.K., 2013 WL 452163, at *34.

      We conclude that it was within the zone of reasonable disagreement as to

whether the admission of the Status Hearing Order conveyed to the jury an opinion by

the presiding judge as to the verity or accuracy of the facts in inquiry—namely whether,

as Mother argues, that Mother had endangered and could not protect her children and

that it was in the children’s best interests to be removed from Mother’s possession. The

order itself contained no express findings to that effect. Mother’s argument relies upon

a jury inferring that the trial court held such opinions because the order restricted

Mother’s visitation with the three oldest children pending a therapist’s recommendation

and because the order contained redacted findings. However, the order also contained

information contrary to any such inference: it appointed Mother as temporary

possessory conservator and allowed her weekly supervised visitation with her youngest

child. As Mother herself argues on appeal, “If [Mother] was a threat to her oldest

children, why wouldn’t such a threat likewise apply to her youngest child? If anything,

a threat to the youngest child . . . would be even more serious since a less mature child

would be less likely to protect himself or report abuse.” On this record, we conclude

that the trial court did not abuse its discretion by admitting the redacted Status Hearing

Order over Mother’s objection.




                                           20
       2.     Mother did not object to the majority of the caseworker’s testimony,
              preserving nothing for our review.
       We will now address Mother’s complaints regarding the admission of the

caseworker’s testimony. Mother, however, is not clear about what testimony she is

specifically complaining about on appeal. We have liberally construed her brief as fairly

including a challenge to the admission of all of the above-quoted caseworker testimony.

See Tex. R. App. P. 38.1(f). In order to address this issue, we will first address the portion

the caseworker’s testimony up through, but not including, the question asking about

visitation being reinstated because Mother obtained an instruction to disregard that last

question. That said, Mother failed to preserve anything for our review regarding the

first portion of the caseworker’s testimony.

       To preserve error for appellate review, a party must have presented to the trial

court a timely request, objection, or motion that states the specific grounds for the

desired ruling, if they are not apparent from the content of the request, objection, or

motion, and obtain a ruling. Tex. R. App. P. 33.1; see also Griggs v. State, 213 S.W.3d 923,

927 (Tex. Crim. App. 2007); In re A.H., No. 02-17-00222-CV, 2017 WL 5180785, at

*12 (Tex. App.—Fort Worth Nov. 9, 2017, pet. denied) (mem. op.); Swilley v. State,

465 S.W.3d 789, 796 (Tex. App.—Fort Worth 2015, no pet.). If a party fails to object

until after an objectionable question has been asked and answered, and if she can show

no legitimate reasons to justify the delay, then her objection is untimely, and the party

waives error. Swilley, 465 S.W.3d at 796.



                                             21
      Here, assuming that the questions at issue were objectionable, Mother did not

object to any of them before the caseworker answered, nor did she object immediately

after the caseworker answered.16 Mother does not acknowledge on appeal her complete

lack of objection to any of the caseworker’s testimony on improper-comment-on-the-

weight-of-the-evidence grounds and, thus, offers no legitimate reason to justify her

delay in raising timely and specific objections to this testimony. Thus, Mother waived

her complaint to the admission of this portion of the caseworker’s testimony. See Tex.

R. App. P. 33.1; Swilley, 465 S.W.3d at 795–96; Remsnyder v. State, No. 02-13-00314-CR,

2015 WL 831468, at *2 (Tex. App.—Fort Worth Feb. 26, 2015, no pet.) (mem. op., not

designated for publication).

      Mother also did not premise her motion for mistrial upon any complaint that the

caseworker’s answers to this first set of questions impermissibly commented on the

weight of the evidence. Like an objection, a motion for mistrial must be both timely

and specific. Legans v. State, No. 02-18-00229-CR, 2019 WL 4019680, at *2 (Tex. App.—

Fort Worth Aug. 27, 2019, pet. ref’d) (mem. op., not designated for publication) (citing

Young v. State, 137 S.W.3d 65, 69 (Tex. Crim. App. 2004)). A motion for mistrial is timely

only if it is made as soon as the grounds for it become apparent. See id. A mistrial is not

required on the basis of an unpreserved evidentiary complaint. Swilley, 465 S.W.3d at



      16
        Mother objected to one question on speculation grounds, as shown in the
quotation above. The trial court’s ruling on that objection is not challenged on appeal.


                                            22
796 (citing Glassey v. State, 117 S.W.3d 424, 432 (Tex. App.—Fort Worth 2003, no pet.)).

Here, even if the trial court had understood Mother’s motion for mistrial as including

a complaint about the first portion of the caseworker’s testimony, the motion was not

timely, and Mother had not timely objected to the questions. Mother offers no

explanation for her delay in raising a complaint about this testimony in the trial court,

if she did at all. Thus, the trial court did not abuse its discretion by denying the motion

for mistrial to the extent the motion was based on the first portion of the caseworker’s

testimony.

       3.    Mother fails to explain how the trial court’s instruction to disregard
             testimony about visitation being reinstated was not sufficient to
             cure the harm, if any, caused by that testimony.
      We assume without deciding that Mother raised a timely and specific complaint

to the trial court with respect to the question, “Do you know whether those visits have

ever been reinstated,” and the caseworker’s answer, “I don’t believe they have.” This

single question-and-answer set was the only one that Mother expressly referenced prior

to moving for a mistrial. As to this question, however, Mother fails to acknowledge on

appeal that the trial court granted Mother’s request for an instruction to the jury to

disregard that question and answer.

      When, as in this case, a trial court instructs a jury to disregard evidence, the

reviewing court may review the evidence to determine whether an instruction to

disregard was adequate to cure its admission. A.B., 2015 WL 1967286, at *3 (citing In

re City of Hous., 418 S.W.3d 388, 397 (Tex. App.—Houston [1st Dist.] 2013, orig.

                                            23
proceeding)). A new trial may be justified if the impact of the improper testimony was

incurable by the trial court’s instructions. Id.

       On appeal, like in the trial court, Mother fails to argue that (much less explain

why) the trial court’s instruction was insufficient to cure any harm, if any, in the

admission of the caseworker’s answer to the one question Mother complained about in

the trial court. See Wilson v. State, 7 S.W.3d 136, 148 (Tex. Crim. App. 1999) (holding

that an instruction to disregard normally cures the error unless it was so egregious that

an instruction would have little effect); Griffin v. State, No. 07-03-0060-CR,

2004 WL 1460132, at *2 (Tex. App.—Amarillo June 29, 2004, no pet.) (not designated

for publication). As explained above, the focus of the question was a therapist’s role in

determining when visitation could take place. Thus, any connection between this one

question and the Status Hearing Order or any order or opinion of the trial court was so

remote, if it existed at all, that we cannot say that the instruction to disregard was

insufficient to cure the harm, if any, caused by the caseworker’s testimony. Thus, we

conclude that the trial court did not abuse its discretion by denying Mother’s motion

for mistrial.17

       Accordingly, we overrule the second part of Mother’s sole issue on appeal.



        To the extent Mother’s motion for mistrial could be construed as having raised
       17

any Rule 605 complaint to the trial court regarding the caseworker’s testimony, we
likewise conclude that the trial court did not abuse its discretion by denying Mother’s
motion for mistrial on Rule 605 grounds for the same reasons set forth above.


                                             24
                                IV.   Conclusion

      Having overruled all parts of Mother’s sole issue, we affirm the trial court’s

judgment.




                                                   /s/ Mike Wallach
                                                   Mike Wallach
                                                   Justice

Delivered: July 30, 2020




                                        25
