                                  NO. 07-10-00353-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                     APRIL 27, 2011


                         IN THE INTEREST OF J.J.K., A CHILD


              FROM THE 223RD DISTRICT COURT OF GRAY COUNTY;

                   NO. 33,952; HONORABLE LEE WATERS, JUDGE


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                        OPINION


      Appellant, Joseph S. Kirkland, appeals a judgment from a jury verdict awarding

sole managing conservatorship of J.J.K. to appellee, Jennifer Jolene Smith, and further

finding that naming Kirkland as possessory conservator of the child would not be in the

best interest of the child. Kirkland appeals through two issues. We will affirm.


                          Factual and Procedural Background


      The judgment that Kirkland appeals from is the result of a five-year legal battle in

a suit affecting the parent-child relationship.   After the original suit was settled by

agreement, Kirkland filed a motion for new trial, or in the alternative, another suit

alleging a change of status of the child or parent requiring a modification of the
judgment. This suit was also terminated by an agreed judgment. Within the year,

Kirkland filed yet another suit requesting to modify the parent-child relationship.

Eventually, Smith filed a counter petition to modify the parent-child relationship and

these matters were tried before a jury on July 19-21, 2010. The jury returned its verdict

on July 21, answering all jury questions against Kirkland. The trial court entered its

judgment on the jury’s answers to the jury questions on August 5, 2010. Kirkland filed

his notice of appeal on September 7, 2010.1


      Subsequently, Kirkland made at least three attempts to file briefs meeting the

requirements of the Texas Rules of Appellate Procedure; however, the first two

attempts resulted in Kirkland being advised that the briefs filed failed to meet the

requirements of the rules. See TEX. R. APP. P. 38.1.2 Finally, on April 6, 2011, Kirkland

filed a brief that was acceptable.     The clerk’s record in this matter was filed on

December 6, 2010. However, no reporter’s record has been received by the Court.


      On October 7, 2010, the Court advised Kirkland that the official reporter had filed

for an extension of time to file the reporter’s record. Kirkland was also advised, on that

date, that he needed to certify back to the Court that he had requested preparation of

the reporter’s record and made arrangements to pay for the same by October 25, 2010.

On November 15, 2010, this Court advised Kirkland that no reporter’s record had been

received and that the official reporter had advised the Court that Kirkland had not

      1
         Kirkland’s notice of appeal was due September 5, 2010, however this was a
Sunday and the following day was a holiday, Labor Day, which made Kirkland’s notice
timely by being filed on September 7, 2010. See TEX. R. APP. P. 4.1 and 26.1.
      2
         Further reference to the Texas Rules of Appellate Procedure will be by
reference to “Rule ___” or “rule ___.”
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requested preparation of any part of the reporter’s record nor had Kirkland made

arrangements to pay for the record. Based upon this information, Kirkland was advised

that the matter would be decided in the absence of a reporter’s record. See Rule

37.3(c). Kirkland has never claimed to be indigent or that he is otherwise permitted to

proceed without payment of costs of appeal.


      Smith’s brief is not yet due at this Court. See Rule 38.6(b). In order to expedite

a decision in this matter, we will, on our own initiative, suspend the operation of rules

38.6(b) and 39.8, and consider the issues raised by Kirkland’s brief. See Rule 2.


      Kirkland’s issues are that: 1) he has never been found to be a threat to the child’s

emotional or physical state, and 2) Smith was in contempt many times creating the

climate that led to the extensive litigation. Under the background facts and procedures

of the case, as reflected above, we construe Kirkland’s issues to attack the sufficiency

of the evidence to support the jury’s verdict and subsequent judgment.


                                        Analysis


      After appropriate instructions were given, the jury was asked whether the order in

existence that controlled the parent-child relationship should be changed to designate

Kirkland as the conservator with exclusive right to designate the primary residence of

the child. The jury answered “No.” The jury was then asked if the joint managing

conservatorship of the child should be replaced by a sole managing conservatorship.

The jury answered “Yes.”      Pursuant to the trial court’s instructions, the jury then




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answered that Smith, who was then known as Jennifer Jolene Martindale,3 should be

named sole managing conservator of the minor child.        Finally, when asked who, if

anyone, should be named possessory conservator and given the option of naming

Kirkland, the jury answered “None.” Based upon these answers, the trial court entered

its judgment removing the parties as joint managing conservators, naming Smith as the

sole managing conservator, and finding it was not in the best interest of the child to

name Kirkland possessory conservator of the child.


Standard of Review


       Under our construction of Kirkland’s issues, we must assume he intends to attack

both the legal and factual sufficiency of the evidence.


Legal Sufficiency


       According to City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005), “‘No

evidence’ points must, and may only, be sustained when the record discloses one of the

following situations: a) a complete absence of evidence of a vital fact; b) the court is

barred by rules of law or of evidence from giving weight to the only evidence offered to

prove a vital fact; c) the evidence offered to prove a vital fact is no more than a mere

scintilla; d) the evidence establishes conclusively the opposite of the vital fact.” When

reviewing an attack on the legal sufficiency of the evidence on an issue that the

appellant has the burden of proof, we are to review the evidence supporting the jury

finding to determine whether there is no evidence to support this finding, and then we


       3
         Appellee had previously remarried and, at time of trial, was using Martindale as
her last name.
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must review all of the evidence to determine whether all facts are established for the

contrary position as a matter of law.    Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241

(Tex. 2001) (citing Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989)). Our

review consists of our viewing the evidence in the light most favorable to the verdict,

crediting favorable evidence if reasonable jurors could, and disregarding all contrary

evidence unless reasonable jurors could not. City of Keller, 168 S.W.3d at 807. Finally,

we may not substitute our judgment for that of the trier of fact as long as the evidence

would allow reasonable and fair-minded people to differ in their conclusion. Id. at 822.

This is but another way of saying that so long as there is at least a scintilla of evidence

to support the jury’s answer to the fact question at issue, the legal sufficiency challenge

must fail. Tarrant Reg’l Water Dist. v. Gragg, 151 S.W.3d 546, 552 (Tex. 2004).


Factual Sufficiency


         In a factual sufficiency review, we consider all of the evidence, both supporting

and contrary to the jury’s answer to the fact question at issue. Plas-Tex, Inc. v U.S.

Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989). Because the jury question involved in

our analysis was one that Kirkland bore the burden of proof on, we will only reverse if

we find that the jury’s answer is against the great weight and preponderance of the

evidence.     Dow Chem. Co., 46 S.W.3d at 242.         In order to reverse on a factual

sufficiency point, we must be convinced that the jury’s answer to the question at issue

was clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.

1986).




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      As can be seen by the standard of review for either legal or factual sufficiency,

we are required to review the evidence to determine if that evidence is sufficient to

sustain the jury’s verdict. Inasmuch as Kirkland has not provided the Court with the

reporter’s record, there is nothing for us to review. See In re Spiegel, 6 S.W.3d 643,

646 n.1 (Tex.App.—Amarillo 1999, no pet.) Accordingly, we can only say that, based

upon the record that is before us, the jury’s answers must stand and the trial court’s

judgment must be affirmed.


                                       Conclusion


      The judgment of the trial court is affirmed.




                                                     Mackey K. Hancock
                                                          Justice




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