Affirmed and Memorandum Opinion filed April 9, 2020.




                                           In The

                       Fourteenth Court of Appeals

                                  NO. 14-18-00850-CV

                                     E.S.F., Appellant

                                              V.

                                     D.J.F., Appellee

                     On Appeal from the County Court at Law
                               Austin County, Texas
                        Trial Court Cause No. 2016L-6652

                    MEMORANDUM OPINION

       Mother E.S.F. filed for divorce from Father D.J.F.1 After a bench trial, the
trial court signed a final decree of divorce.2 Mother appeals and challenges the
trial court’s appointment of Mother and Father as joint managing conservators as
well as other evidentiary issues. For the reasons below, we affirm.
       1
        We use initials and pseudonyms to refer to appellant, appellee, and their children. See
Tex. Fam. Code Ann. § 109.002(d); Tex. R. App. P. 9.8.
       2
          See Tex. Gov’t Code Ann. § 25.0102(a) (giving Austin County Court at Law concurrent
jurisdiction with district court in family law cases and proceedings).
                                     BACKGROUND

       Mother and Father were married in 1999 and have five children. Mother
 filed for divorce from Father in September 2016 and the parties proceeded to a
 bench trial. The trial court heard testimony from numerous witnesses addressing
 the parties’ relationship, their relationships with their children, and their assets.

       The trial court signed a final decree of divorce on August 30, 2018. The trial
 court appointed the parties as joint managing conservators of their four minor
 children, with Father retaining the right to designate the children’s primary
 residence. The final decree of divorce also divided the parties’ marital estate. The
 trial court signed additional findings of fact and conclusions of law on October 17,
 2018. Mother timely appealed.

                                        ANALYSIS

       Mother asserts four issues on appeal:

       1.     the trial court erred when it appointed the parties as joint managing
              conservators because credible evidence was presented showing Father
              has a history or pattern of committing physical and sexual abuse;
       2.     the trial court erred when it failed to sua sponte admit certain
              evidence;
       3.     the trial court erred when it permitted testimony from Father’s real
              estate expert, James Havel; and
       4.     the trial court erred when it permitted Father to testify as to the value
              of the marital home.

 We address these issues below.

I.     Joint Managing Conservators

       In the final divorce decree, the trial court appointed Mother and Father as
 joint managing conservators.       Challenging this appointment, Mother relies on


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Texas Family Code section 153.004(b), which states, in relevant part:

       The court may not appoint joint managing conservators if credible
       evidence is presented of a history or pattern of past or present child
       neglect, or physical or sexual abuse by one parent directed against the
       other parent, a spouse, or a child . . . .

Tex. Fam. Code Ann. § 153.004(b).                 Mother argues the following evidence
satisfies section 153.004(b)’s “credible evidence” showing: (1) testimony from
several pre-trial hearings; (2) Father’s testimony at trial regarding a prior
confrontation with Mother; and (3) Father’s invocation of the Fifth Amendment
privilege against self-incrimination during certain pre-trial discovery that was
admitted into evidence at trial.

       A.      Testimony from Pre-Trial Hearings

       Citing testimony from several witnesses at four pre-trial hearings, Mother
asserts that “credible evidence” was presented showing Father had a history or
pattern of sexually abusing the children. Father asserts this evidence cannot be
considered on appeal because the transcripts from the pre-trial hearings were not
admitted into evidence at the bench trial.3

       Before trial began, the trial court had the following discussion with the
parties’ attorneys:

       The Court: All right. The parties have met in chambers and we have
                  some agreements.       In prior hearings we’ve heard
                  testimony from Angela McCann, Cheryl Brown, Jessica
                  Hernandez, Fiona Remko, Nolana Jalowy, and Ranger
                  Jeff Wolf. Those transcripts have been prepared by Ms.
                  Parker, and I think all parties have copies of those
                  transcripts. I understand that those transcripts will be
                  admitted, and so the Court can consider their testimony
       3
         Transcripts of these hearings (as well as five additional pre-trial hearings) were included
with the reporter’s record.

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                    without them having to be recalled.
                       *                 *                   *
      The Court: All right. So those transcripts — now, I know the parties
                 have received transcripts. At some point we’ll need to
                 have, I guess, a transcript included in the record so we
                 will make sure that that gets done as we proceed.

These transcripts were not admitted into evidence during the trial and are not
included with the trial exhibits.

      “In order for testimony from a prior hearing or trial to be considered in a
subsequent proceeding, the transcript of that testimony must be properly
authenticated and entered into evidence.” Guyton v. Monteau, 332 S.W.3d 687,
693 (Tex. App.—Houston [14th Dist.] 2011, no pet.); see also In re R.N.Y., No.
14-14-00984-CV, 2015 WL 1928865, at *5 (Tex. App.—Houston [14th Dist.] Apr.
28, 2015, no pet.) (mem. op.) (“testimony from prior hearings that is not admitted
into evidence at trial is not part of the evidence we may consider”); In re M.C.G.,
329 S.W.3d 674, 675 (Tex. App.—Houston [14th Dist.] 2010, pet. denied)
(“Testimony from a prior hearing can be used at trial only if the testimony is
admitted into evidence.”). Here, because the transcripts at issue were not admitted
into evidence, the testimony therein cannot be used to challenge the trial court’s
appointment of the parties as joint managing conservators.

      Pointing out that the parties “agreed” to the admission of the transcripts,
Mother argues that no “formal process of admission is required.” But the cases
Mother cites to support this contention are distinguishable and do not warrant a
departure from the standards discussed above.

      Mother cites Texas Health Enterprises, Inc. v. Texas Department of Human
Services, 949 S.W.2d 313 (Tex. 1997) (per curiam), in which the supreme court
concluded that the appellate court erroneously failed to file the underlying

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administrative record even though the record “was not formally tendered as
evidence.” Id. at 313. Mother also relies on In re G.M., No. 04-19-00080-CV,
2019 WL 3432088 (Tex. App.—San Antonio July 31, 2019, pet. denied) (mem.
op.), in which the trial court considered video evidence that was not “actually
admitted on the record.” Id. at *2-3, *4 (Watkins, J., concurring), *6 (Martinez, J.,
dissenting). In both cases, the record left no doubt that the challenged evidence
was reviewed and considered by the trial court in reaching its decision. See Texas
Health Enters., Inc., 949 S.W.2d at 314 (“the court’s order affirming [the
appellant’s] decision le[ft] no doubt . . . that the court based its decision upon the
administrative record”); In re G.M., 2019 WL 3432088, at *2 n.1 (as the video was
played in open court, the trial court stated “[m]ake a note for the record . . . that
we’re watching the video that’s been offered as State’s Exhibit 1”; at the
conclusion of the video, the trial court stated, “Very well. The Court has seen the
video.”). Moreover, the supreme court’s decision in Texas Health Enterprises, Inc.
also was based on a specific provision in the Administrative Procedure Act (see
949 S.W.2d at 313), while in In re G.M., two separate writings disagreed with the
majority opinion’s conclusion that the video evidence could be properly considered
by the court.

      Unlike these cases, here there is no indication that the trial court reviewed
the transcripts from the four pre-trial hearings as part of its ruling. Neither the
hearings nor the transcripts are mentioned or cited in the trial court’s final decree
of divorce or in its findings of fact and conclusions of law. Further, the trial court
explicitly stated that “[a]t some point we’ll need to have . . . a transcript included in
the record.” This was not completed, and the transcripts at issue were not included
with the trial record.

      Because transcripts from the pre-trial hearings were not admitted into

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evidence at the bench trial, testimony from those hearings cannot be used to
challenge the trial court’s appointment of Mother and Father as joint managing
conservators.

      B.     Father’s Testimony at Trial

      Citing portions of Father’s testimony at trial, Mother argues this testimony
“constitutes a judicial admission of the underlying physical abuse” and precludes
the appointment of Mother and Father as joint managing conservators.

      When determining issues of conservatorship, the best interest of the children
is the primary consideration. See Tex. Fam. Code Ann. § 153.002. The trial court
is afforded great discretion when making these determinations and we review its
decision for an abuse of that discretion. See Gillespie v. Gillespie, 644 S.W.2d
449, 451 (Tex. 1982); Baker v. Baker, 469 S.W.3d 269, 273 (Tex. App.—Houston
[14th Dist.] 2015, no pet.). The trial court abuses its discretion when its decision is
arbitrary, unreasonable, or without reference to any guiding rules or principles.
Baker, 469 S.W.3d at 273. The trial court does not abuse its discretion if there is
some evidence of a substantive and probative character to support its decision. In
re K.S., 492 S.W.3d 419, 426 (Tex. App.—Houston [14th Dist.] 2016, pet. denied).

      The law presumes that the appointment of both parents as joint managing
conservators is in the best interest of the children. See Tex. Fam. Code Ann.
§ 153.131(b). But the trial court may not appoint the parents as joint managing
conservators if “credible evidence is presented of a history or pattern” of physical
abuse by one parent directed against the other parent. Id. at § 153.004(b).

      When, as here, the trial court is the factfinder, it is the sole judge of the
weight and credibility of the evidence; if it does not find credible evidence of a
history or pattern of domestic violence, it is not bound by section 153.004. In re


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Marriage of Harrison, 557 S.W.3d 99, 128 (Tex. App.—Houston [14th Dist.]
2018, pet. denied).    Although a single incident of physical violence could
constitute a history of physical abuse, the trial court also may consider the
participants’ explanations of what occurred and the amount of time that elapsed
since the incident in question in determining whether a “history or pattern” of
abuse was shown. See id.; see also Hinojosa v. Hinojosa, No. 14-11-00989-CV,
2013 WL 1437718, at *3 (Tex. App.—Houston [14th Dist.] Apr. 9, 2013, no pet.)
(mem. op.).

      Here, Mother’s argument rests on Father’s testimony describing a November
2014 incident where he “physically” hurt Mother. Father said the altercation began
when Mother brought up Father’s failure to answer a phone call she made to him
earlier in the day. According to Father, Mother got “angry” at his response and
“ran at [him] from the kitchen” while “grabbing a pillow.” Father said Mother
“jumped onto [his] body” and “put[] the pillow over [his] face” while she
“planted” her knees in his ribs and abdomen. Father testified that Mother was
“punching [him] on the top of [his] head with one of her hands while she attempted
to smother [him] with a pillow.” Father testified that he “threw [Mother] over the
baby gate” and he fell on top of her. Father said Mother continued to grab and
squeeze him and he punched her in stomach.

      Mother argues that this testimony is a “judicial admission” that establishes
as a matter of law a history or pattern of physical abuse. A judicial admission is a
formal waiver of proof usually found in pleadings or the parties’ stipulations; a
quasi-admission, in contrast, is a testimonial declaration contrary to a party’s
position. See Aguirre v. Vasquez, 225 S.W.3d 744, 756 (Tex. App.—Houston
[14th Dist.] 2007, no pet.). Whereas a judicial admission is conclusive on the party
making it, a quasi-admission “is merely some evidence, and not conclusive, upon

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the person making the admission.” Id. To the extent Father’s testimony describing
the November 2014 incident was contrary to his position, it is a testimonial quasi-
admission that is not conclusive with respect to the trial court’s conservatorship
determination.    See, e.g., Laday v. Pedraza, No. 14-13-00638-CV, 2015 WL
545535, at *2 (Tex. App.—Houston [14th Dist.] Feb. 10, 2015, pet. denied) (mem.
op.).

        Presuming for the sake of argument that Father’s testimony constitutes a
“judicial admission,” Father’s description of the November 2014 incident does not
render the trial court’s joint managing conservatorship appointment an abuse of
discretion. Courts previously have held that a single incident of family violence
does not necessarily preclude a joint conservatorship where the challenged
conservator testifies that the alleged violence was in self-defense or in response to
other acts of aggression and a factfinder could rely upon its own credibility
determination to find same. See In re Marriage of Harrison, 557 S.W.3d at 128
(mother asserted that father’s “no contest” plea to an assault charge precluded joint
conservatorship; concluding the trial court’s appointment was not an abuse of
discretion, this court noted that, according to father, the incident in question began
when mother engaged him in a verbal dispute and shoved him, after which father
shoved her back); see also Tex. Fam. Code Ann. § 71.004 (defining “family
violence” to exclude “defensive measures to protect oneself”); In re L.G.K.S., No.
12-18-00178-CV, 2019 WL 4462693, at *5 (Tex. App.—Tyler Sept. 18, 2019, no
pet.) (mem. op.) (joint conservatorship was not an abuse of discretion even though
father “admit[ted] to pushing [mother] on two separate occasions during
arguments”); and In re Marriage of McLain & Baker-McLain, No. 07-06-0143-
CV, 2007 WL 2915409, at *2 (Tex. App.—Amarillo Oct. 8, 2007, no pet.) (mem.
op.) (joint conservatorship was not an abuse of discretion when father “denied


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having ever touched [mother] except in self defense”).            In the underlying
proceeding, Father testified that he threw Mother over the baby gate and punched
her only after she climbed on top of him, smothered him with a pillow, and
punched him in the head. Considering the attendant circumstances as described by
Father, it was within the trial court’s discretion to determine that this incident did
not preclude the parties from acting in a joint parenting role. See Gillespie, 644
S.W.2d at 451; Baker, 469 S.W.3d at 273.

        C.    Father’s Invocation of the Fifth Amendment

        Mother asserts that Father’s invocation of the Fifth Amendment right against
self-incrimination in response to certain questions constitutes “credible evidence”
of sexual abuse against the children. See U.S. Const. amend. V (a person may not
be compelled to testify or give evidence against himself); see also Tex. Dep’t of
Pub. Safety Officers Ass’n v. Denton, 897 S.W.2d 757, 760 (Tex. 1995) (the Fifth
Amendment can be asserted in both civil and criminal cases when the respondent’s
answer may subject the respondent to criminal responsibility). Mother points out
that Father pleaded the Fifth Amendment in response to questioning (1) at a pre-
trial hearing, and (2) in certain pre-trial discovery that was admitted into evidence
at trial.

        As discussed above, the transcripts from the pre-trial hearings were not
admitted into evidence at trial. Accordingly, they are not part of the evidence we
may consider on appeal. See In re R.N.Y., 2015 WL 1928865, at *5; Guyton, 332
S.W.3d at 693; In re M.C.G., 329 S.W.3d at 675.

        Mother’s argument also rests on Father’s invocation of the Fifth Amendment
during his interview with Texas Ranger Jeffrey Wolf. Ranger Wolf interviewed
Father as part of an investigation conducted by the Austin County Sheriff’s Office
at the request of the Child Protective Services.          Father pleaded the Fifth
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  Amendment in response to certain questions regarding allegations that he sexually
  abused the children.

        In a civil case, the factfinder may draw reasonable inferences from a party’s
  assertion of the privilege against self-incrimination. Baxter v. Palmigiano, 425
  U.S. 308, 318 (1976); Tex. Dep’t of Pub. Safety Officers Ass’n, 897 S.W.2d at 763.
  But a “claim of privilege is not a substitute for relevant evidence.” United States v.
  Rylander, 460 U.S. 752, 761 (1983). Mother does not point to any other evidence
  at trial showing that Father sexually abused the children. Without more, any
  inferences the trial court may have drawn from Father’s invocation of the privilege
  during his interview with Ranger Wolf do not constitute “credible evidence” that
  would foreclose a joint conservatorship.       See, e.g., Webb v. Maldonado, 331
  S.W.3d 879, 883 (Tex. App.—Dallas 2011, pet. denied); Blake v. Dorado, 211
  S.W.3d 429, 433-34 (Tex. App.—El Paso 2006, no pet.).

        We overrule Mother’s first issue.

II.     Sue Sponte Admission of Evidence

        Prior to trial, the parties’ minor children underwent a recorded forensic
  interview as part of an investigation into allegations of abuse.       Neither party
  offered the recorded interview as evidence at trial. Mother asserts that, because
  numerous witnesses referenced the recorded interview and offered “conflicting
  accounts” of its content, “the trial court should have sua sponte had the [recorded
  interview] admitted into evidence” at trial. The failure to admit this evidence,
  Mother argues, constitutes fundamental error.

        The fundamental error doctrine is a narrow and limited exception to the
  procedural rules requiring parties to preserve error on their appellate complaints.
  See In re B.L.D., 113 S.W.3d 340, 350 (Tex. 2003). “In light of the strong policy
  considerations favoring the preservation of error requirement, the Supreme Court
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   of Texas has called the fundamental error doctrine ‘a discredited doctrine.’” In re
   M.M.M., 428 S.W.3d 389, 398 (Tex. App.—Houston [14th Dist.] 2014, pet.
   denied) (quoting In re B.L.D., 113 S.W.3d at 350). At most, the doctrine applies
   when (1) the record shows on its face that the court rendering the judgment lacked
   jurisdiction; (2) the alleged error occurred in a juvenile delinquency case and falls
   within a category of error that does not require preservation of error; or (3) when
   the error directly and adversely affects the public interest, as that interest is
   declared by a Texas statute or the Texas Constitution. See Mack Trucks, Inc. v.
   Tamez, 206 S.W.3d 572, 577 (Tex. 2006); In re B.L.D., 113 S.W.3d at 350-51; In
   re M.M.M., 428 S.W.3d at 398.

          Here, Mother does not cite any cases to support her contention that the trial
   court’s alleged failure to sua sponte admit certain evidence constitutes fundamental
   error.4 Mother also does not cite any case law or other authority to support her
   claim that the trial court can, on its own accord, admit evidence that was not
   offered by a party. We decline to sustain Mother’s argument in the absence of any
   supporting authority, particularly in light of the fundamental error doctrine’s
   “limited” reach. In re B.L.D., 113 S.W.3d at 350.

          We overrule Mother’s second issue. See Tex. R. App. P. 33.1(a).

III.      Havel’s Testimony

          In her third issue, Mother contends the trial court erred by permitting Havel
   to testify because (1) Father untimely designated Havel as an expert; and (2) Havel
   did not produce his expert report until twenty minutes before he took the stand at

          4
            Instead, the cases Mother cites to support her argument on this point assert only that
   experts may not testify as to the credibility of child witnesses. See In re G.M.P., 909 S.W.2d
   198, 205 n.4 (Tex. App.—Houston [14th Dist.] 1995, no writ); James v. Tex. Dep’t of Human
   Servs., 836 S.W.2d 236, 243-44 (Tex. App.—Texarkana 1992, no writ); and Ochs v. Martinez,
   789 S.W.2d 949, 958 (Tex. App.—San Antonio 1990, writ denied).

                                                 11
trial.

         To preserve error regarding a party’s failure to timely designate a testifying
expert or produce the expert’s report, the appellant must object and obtain a ruling
in the trial court. See Tex. R. App. P. 33.1; see also Expro Americas, LLC v.
Sanguine Gas Expl., LLC, 351 S.W.3d 915, 919-20 (Tex. App.—Houston [14th
Dist.] 2011, pet. denied). Here, when Havel began to testify at trial, Mother’s
counsel objected to Havel’s testimony only on grounds that Havel’s expert report
was not provided until shortly before Havel took the stand. Mother’s counsel did
not raise any objections regarding Father’s failure to timely designate Havel as an
expert. Therefore, any issues regarding the timeliness of Havel’s designation are
waived and we consider only Mother’s challenge regarding the timeliness of
Havel’s expert report. See Tex. R. App. P. 33.1.

         We review the trial court’s evidentiary rulings for an abuse of discretion.
Serv. Corp. Int’l v. Guerra, 348 S.W.3d 221, 235 (Tex. 2011); Moral v. Mem’l
Point Prop. Owners Ass’n, Inc., 410 S.W.3d 397, 407 (Tex. App.—Houston [14th
Dist.] 2013, no pet.). A trial court abuses its discretion when it acts without regard
to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701
S.W.2d 238, 241-42 (Tex. 1985). We reverse an evidentiary ruling only if it
probably caused the rendition of an improper judgment. Horizon/CMS Healthcare
Corp. v. Auld, 34 S.W.3d 887, 906 (Tex. 2000); see also Tex. R. App. P.
44.1(a)(1).

         The Texas Rules of Civil Procedure require parties to amend and supplement
written discovery regarding a testifying expert, including the provision of the
expert’s written reports. See Tex. R. Civ. P. 193.5, 194.2, 195.6. A party who fails
to amend this written discovery in a timely manner may not introduce into
evidence the material that was not timely disclosed unless the trial court finds that

                                           12
  (1) there was good cause for the failure to timely make, amend, or supplement the
  discovery response; or (2) the failure to timely make, amend, or supplement the
  discovery response will not unfairly surprise or unfairly prejudice the other parties.
  Id. 193.6(a). The burden of establishing good cause or lack of unfair surprise or
  prejudice is on the party seeking to introduce the evidence. Id. 193.6(b). A finding
  of good cause or lack of unfair surprise or prejudice must be supported by the
  record. May v. Ticor Title Ins., 422 S.W.3d 93, 104 (Tex. App.—Houston [14th
  Dist.] 2014, no pet.).

        Here, the record supports the trial court’s implied finding that Mother was
  not unfairly prejudiced by the late disclosure of Havel’s expert report. Responding
  to Mother’s objection in the trial court, Father’s attorney stated that Havel had
  “just finished his appraisal” and given it to Father’s attorney that same day. Havel
  testified that he delivered his report on the day of his testimony because his mother
  had been ill. Overruling the objection from Mother’s attorney, the trial court stated
  that, if Mother’s attorney “need[ed] more time to review the report,” the trial court
  would give him “all the time that [he] need[ed],” even if it required recalling Havel
  for additional questioning.    These statements support the finding that the late
  disclosure of Havel’s expert report did not unfairly prejudice Mother.
  Furthermore, the record does not show that Mother’s attorney attempted to recall
  Havel for additional questioning.

        We overrule Mother’s third issue.

IV.     Father’s Testimony Regarding the Value of the Marital Home

        In her final issue, Mother asserts the trial court erred by permitting Father to
  testify regarding the value of the marital home.

        Father testified several times during trial that he valued the marital home at


                                            13
$250,000. Mother did not object to any of Father’s testimony on this point. As
with the evidentiary objections discussed above, a party must object at trial when
testimony is offered to preserve error for appellate review. See Tex. R. App. P.
33.1; see, e.g., Petroleum Workers Union of the Republic of Mex. v. Gomez, 503
S.W.3d 9, 36 (Tex. App.—Houston [14th Dist.] 2016, no pet.). Because Mother
did not object to this evidence at trial, she cannot raise this issue for the first time
on appeal.

      We overrule Mother’s fourth issue.

                                    CONCLUSION

      We overrule Mother’s issues on appeal and affirm the trial court’s final
decree of divorce.




                                        /s/    Meagan Hassan
                                               Justice


Panel consists of Justices Zimmerer, Spain, and Hassan.




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