                                         NO. 12-13-00026-CV

                           IN THE COURT OF APPEALS

                 TWELFTH COURT OF APPEALS DISTRICT

                                            TYLER, TEXAS

                                                        §              APPEAL FROM THE THIRD
IN THE INTEREST OF
                                                       §               JUDICIAL DISTRICT COURT
B.G.W., A CHILD
                                                      §                HENDERSON COUNTY, TEXAS



                                        MEMORANDUM OPINION
       V.H. and B.W. appeal the termination of their parental rights. In five and four issues
respectively, V.H. and B.W. challenge the order of termination. We affirm.


                                                  BACKGROUND
       V.H. and B.W. are the parents of B.G.W., born August 5, 2002. On November 14, 2011, the
Department of Family and Protective Services (the Department) filed an original petition for
protection of the child, for conservatorship, and for termination of Appellants’ parental rights. The
Department was appointed B.G.W.’s temporary managing conservator and the parents were
appointed temporary possessory conservators of the child, with limited rights, duties, and access to,
and possession of, the child.
       After a trial, the jury found, by clear and convincing evidence, that V.A. had engaged in one
or more of the acts or omissions necessary to support termination of her parental rights under Texas
Family Code Section 161.001(1), subsections (D), (E), and (O), or more specifically, had


       knowingly placed or knowingly allowed the child to remain in conditions or surroundings [that]
       endanger[ed] the physical or emotional well being of the child;

       engaged in conduct or knowingly placed the child with persons who engaged in conduct [that]
       endanger[ed] the physical or emotional well being of the child; or

       failed to comply with the provisions of a court order that specifically established the actions necessary
       for the mother to obtain the return of the child who has been in the permanent or temporary managing
       conservatorship of the Department of Family and Protective Services for not less than nine months as
       a result of the child’s removal from the parent under Chapter 262 for the abuse or neglect of the child.


       The jury also found that termination of the parent-child relationship between V.H. and
B.G.W. was in the child’s best interest. Based on these findings, the trial court ordered that the
parent-child relationship between V.H. and B.G.W. be terminated.
       The jury also found, by clear and convincing evidence, that B.W. had engaged in one or
more of the acts or omissions necessary to support termination of his parental rights under Texas
Family Code Section 161.001(1), subsections (D), (E), and (O), or more specifically, had


       knowingly placed or knowingly allowed the child to remain in conditions or surroundings [that]
       endanger[ed] the physical or emotional well being of the child;

       engaged in conduct or knowingly placed the child with persons who engaged in conduct [that]
       endanger[ed] the physical or emotional well being of the child; or

       failed to comply with the provisions of a court order that specifically established the actions necessary
       for the father to obtain the return of the child who has been in the permanent or temporary managing
       conservatorship of the Department of Family and Protective Services for not less than nine months as
       a result of the child’s removal from the parent under Chapter 262 for the abuse or neglect of the child.



       The jury also found that termination of the parent-child relationship between B.W. and
B.G.W. was in the child’s best interest. Based on these findings, the trial court ordered that the
parent-child relationship between B.W. and B.G.W. be terminated. This appeal followed.




                                       SUFFICIENCY OF THE EVIDENCE
       As part of her first, second, third, fourth, and fifth issues, V.H. contends that the evidence is
legally insufficient to support the jury’s finding that her parental rights to B.G.W. should be
terminated, and that termination of the parent-child relationship was in B.G.W.’s best interest. In his
first and second issues, B.W. also argues that the evidence is legally insufficient to support the
jury’s finding that termination of the parent-child relationship was in B.G.W.’s best interest.
       A no evidence complaint is preserved through one of the following: (1) a motion for
instructed verdict; (2) a motion for judgment notwithstanding the verdict; (3) an objection to the
submission of the issue to the jury; (4) a motion to disregard the jury's answer to a vital fact issue;
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or (5) a motion for new trial. T.O. Stanley Boot Co., Inc. v. Bank of El Paso, 847 S.W.2d 218, 220
(Tex. 1992); see also In re D.J.J., 178 S.W.3d 424, 426-27 (Tex. App.—Fort Worth 2005, no pet).
V.H. and B.W. did not file a motion for instructed verdict regarding the evidence to support the
jury’s findings, a motion for new trial, or any of the other motions necessary to preserve their legal
sufficiency challenges.        Therefore, they have waived the right to complain about the legal
sufficiency of the evidence to support the jury’s findings.
        As part of her first, second, third, fourth, and fifth issues, V.H. also contends that the
evidence is factually insufficient to support the jury’s findings that her parental rights to B.G.W.
should be terminated, and that termination of the parent-child relationship was in B.G.W.’s best
interest. In his first and second issues, B.W. argues that the evidence is factually insufficient to
support the jury’s finding that termination of the parent-child relationship was in B.G.W.’s best
interest. A point in a motion for new trial is a prerequisite to a complaint of factual insufficiency of
the evidence to support a jury finding. In re A.J.L., 136 S.W.3d 293, 301 (Tex. App.—Fort Worth
2004, no pet.); TEX. R. CIV. P. 324(b)(2); see also In re M.S., 115 S.W.3d 534, 547 (Tex. 2003)
(applying Texas Rule of Civil Procedure 324(b)(2) requiring a motion for new trial to preserve a
complaint of factual sufficiency to support jury finding to parental termination cases). V.H. and
B.W. did not file motions for new trial. Therefore, they have waived the right to complain about the
factual sufficiency of the evidence to support the jury’s findings.
        Accordingly, we overrule V.H.’s first, second, third, fourth, and fifth issues, and B.W.’s first
and second issues.1


                                            ADMISSION OF EVIDENCE
        In B.W.’s third issue, he argues that the trial court abused its discretion by admitting
evidence of voice mail recordings that were not produced under the discovery rules and were
unduly prejudicial. The Department disagrees, contending that another witness testified as to the
content of the voice mail recordings without objection.




        1
           There is no claim that failure to preserve error was unjustifiable or the result of ineffective assistance of
counsel. See In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005).
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Standard of Review
       We review a trial court's evidentiary rulings for abuse of discretion.         Owens–Corning
Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). A trial court abuses its discretion if it
acts without reference to any guiding rules or principles or if its actions are arbitrary and
unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). We
must uphold the trial court's evidentiary ruling if there is any legitimate basis for the ruling. Owens–
Corning Fiberglas Corp., 972 S.W.2d at 43.
Applicable Law
       A party who fails to make, amend, or supplement a discovery response in a timely manner
may not introduce in evidence the material or information that was not timely disclosed, unless the
court finds that (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. TEX. R. CIV. P. 193.6(a). The
burden of establishing good cause or the lack of unfair surprise or unfair prejudice is on the party
seeking to introduce the evidence. TEX. R. CIV. P. 193.6(b). A finding of good cause or of the lack
of unfair surprise or unfair prejudice must be supported by the record. Id.
       Erroneously admitting evidence ―will not result in reversal when other such evidence was
received without objection, either before or after the complained-of ruling.‖ Coble v. State, 330
S.W.3d 253, 282 (Tex. Crim. App. 2010) (quoting Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim.
App. 1998)). In other words, an error in the admission of evidence is deemed harmless and is
waived if the objecting party permits the same or similar evidence to be introduced without
objection. See Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 907 (Tex. 2004); Breof BNK
Tex., L.P. v. D.H. Hill Advisors, Inc., 370 S.W.3d 58, 67 (Tex. App.—Houston [14th Dist.] 2012,
no pet.). Therefore, ―counsel must object every time allegedly inadmissible evidence is offered.‖
Hudson v. State, 675 S.W.2d 507, 511 (Tex. Crim. App. 1984).
       No judgment may be reversed on appeal on the ground that the trial court made an error of
law unless the reviewing court concludes that the error complained of (1) probably caused the
rendition of an improper judgment or (2) probably prevented the appellant from properly presenting
the case to the court of appeals. TEX. R. APP. P. 44.1(a); Harris Cnty. v. Smith, 96 S.W.3d 230, 234-
35 (Tex. 2002). A reviewing court must evaluate the entire case from voir dire to closing argument,

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considering the evidence as a whole, the strength or weakness of the case, and the verdict. U-Haul
Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 136 (Tex. 2012). A successful challenge to evidentiary
rulings usually requires the complaining party to demonstrate that the judgment turns on the
particular evidence admitted. Nissan Motor Co. Ltd. v. Armstrong, 145 S.W.3d 131, 144 (Tex.
2004); City of Brownsville v. Alvarado, 897 S.W.2d 750, 753-54 (Tex. 1995). Whether the
erroneous admission of evidence is harmful is more a matter of judgment than precise measurement.
Nissan Motor Co., 145 S.W.3d at 144. In making that judgment, appellate courts look to the role
the evidence played in the context of the trial and the efforts made by counsel to emphasize the
erroneous evidence, as well as whether there was contrary evidence that the improperly admitted
evidence was calculated to overcome. U–Haul Int’l, Inc., 380 S.W.3d at 136.
Objections and Testimony
       Before trial, the Department requested that recordings of voice mails left by B.W. for V.H.
be admitted at trial.   According to the Department, these voice mails were made after B.W.
attempted to strangle V.H., but before his trial on that assault, and were threatening. Further, the
Department’s counsel stated that the recordings were relevant to the best interest of the child and,
potentially, would be used for impeachment.
       B.W.’s counsel objected, arguing that these recordings were not provided to him until the
day before trial and, thus, were not admissible.       The Department’s counsel stated that these
recordings were not provided previously in response to discovery because the Department did not
have these recordings in its possession or control. According to the Department, these recordings
were in the possession of the district attorney’s office and the Department was not aware of the
recordings until B.W.’s criminal trial. At that point, the trial court did not decide whether the voice
mails should be admitted, although it allowed the Department to discuss the recordings in its
opening statement.
       At trial, B.W. testified that he left several voice mails for V.H and admitted that these
recordings were played at his criminal trial. He admitted that these recordings were ―pretty bad‖
and that he ―wish[ed] [he] hadn’t of said them.‖ B.W. testified that he was mad when he left the
voice mails, but he did not threaten to kill anyone, ―[he didn’t] think.‖ He admitted that he said
whatever was contained in the recordings.        B.W.’s attorney did not object to this testimony
regarding the voice mail recordings.

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       During trial, the Department requested the voice mail recordings be admitted. The trial
court determined that it would allow the recordings to be admitted if the proper foundations were
laid. B.W.’s counsel objected because copies of the recordings had not been provided to him thirty
days before the hearing. Therefore, B.W.’s counsel argued, these recordings were inadmissible
under the discovery rules. Moreover, he stated that the recordings were unduly prejudicial because
B.W. admitted leaving the voice mails and admitted that they were threatening. Thus, B.W.’s
counsel stated, playing the recordings would be ―theater and theater alone.‖ The Department’s
counsel agreed that B.W. admitted to making the recordings but contended that B.W. ―danced
around‖ admitting that the voice mails were threatening, stating instead that ―he said he was mad.‖
The trial court admitted the voice mail recordings.
       At trial, Jessica Halbert, an investigator for the Henderson County Sheriff’s office, stated
that she was working on a criminal case involving B.W.’s alleged strangulation of V.H. She
testified that while she was investigating the case, V.H. informed her that multiple messages from
B.W. had been left on her cellular telephone. According to Halbert, she recorded the messages by
having V.H. play them on speakerphone in front of a recording device. Halbert identified the
recording and stated that it was a fair and accurate copy of the voice mails. The Department
requested that the voice mails be admitted, and B.W.’s counsel objected. The trial court overruled
counsel’s objections, and the Department published the voice mails before the jury.
       After the voice mails were published, Halbert testified that in the first recording, B.W. said
―bring it on,‖ ―that’s what I’m doing tomorrow‖ and ―you f****d up.‖ She also stated that on the
second recording, he said ―I’m coming after you, going to light it up.‖ Halbert testified further that
on the third recording, B.W. said ―I deserve what I get, call the law b***h,‖ and on the fourth
recording, he said ―the lights are on, doors are open, come on in.‖ She agreed that in the fifth
recording, B.W. said ―I can’t wait m*****f****r.‖ Halbert believed that these recordings were
threatening, considering all of the circumstances. B.W.’s counsel did not object to any of Halbert’s
testimony regarding the content of the voice mail recordings.
Analysis
       Even if we assume the voice mail recordings were inadmissible, an error in the admission of
evidence is harmless if substantially the same evidence is admitted elsewhere without objection.
See Volkswagen of Am., Inc., 159 S.W.3d at 907; Breof BNK Tex., L.P., 370 S.W.3d at 67.

                                                  6
Further, B.W. must have objected every time the allegedly inadmissible evidence was offered or he
has waived any complaint about the admission of the evidence. See Lagrone v. State, 942 S.W.2d
602, 618 (Tex. Crim. App. 1997); Hudson, 675 S.W.2d at 511. From our review of the record, we
conclude that B.W. failed to make all of the required objections.
       B.W. admitted that he left the voice mails for V.H., that he was mad, and that he said
whatever was in the recordings. Although he testified that the voice mails were ―pretty bad,‖ he did
not ―think‖ he threatened to kill anyone. Halbert testified that the voice mails were threatening
under the circumstances, having previously noted that B.W. was being investigated for allegedly
strangling V.H. She also testified regarding the specific contents of each voice mail message that
had been published to the jury. B.W. did not object to any of this testimony. Because the evidence
that B.W. left threatening voice mails for V.H. was admitted without objection, and Halbert
described the contents of the voice mail recordings without objection, any error admitting the voice
mail recordings is harmless. See Volkswagen of Am., Inc., 159 S.W.3d at 907; Breof BNK Tex.,
L.P., 370 S.W.3d at 67.
       We overrule B.W.’s third issue.


                                   MOTION FOR CONTINUANCE
       In his fourth issue, B.W. argues that the trial court abused its discretion by failing to grant
his motion for continuance after he announced ―not ready‖ for trial. The denial of a motion for
continuance is reviewed under an abuse of discretion standard. Garner v. Fidelity Bank, N.A., 244
S.W.3d 855, 858 (Tex. App.—Dallas 2008, no pet.). The denial will be reversed only if the trial
court’s action was arbitrary, unreasonable, or without reference to any guiding rules and principles.
Id. (citing BMC Software Belg. N.V. v. Marchand, 83 S.W.3d 789, 800 (Tex. 2002)). If a motion
for continuance is not made in writing and verified, it will be presumed that the trial court did not
abuse its discretion by denying the motion. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986).
       Further, a motion for continuance must include an affidavit stating sufficient cause. TEX. R.
CIV. P. 251. Generally, when a movant fails to comply with Rule 251’s requirement that the motion
for continuance be ―supported by affidavit,‖ an appellate court must presume that the trial court did
not abuse its discretion in denying the motion. Villegas, 711 S.W.2d at 626. In other words, if a


                                                  7
motion for continuance is not verified or supported by affidavit, we will presume the trial court did
not abuse its discretion in denying the motion. Garner, 244 S.W.3d at 858.
         Here, B.W.’s counsel orally requested a continuance on the day before trial, contending that
he was ―not ready‖ for trial because B.W. had been arrested for violating a protective order in favor
of V.H. and counsel had just been given voice mail recordings that B.W. left for V.H. A motion for
continuance must be made in writing and verified. See Villegas, 711 S.W.2d at 626. However,
B.W. admitted that his motion was not in writing. Further, when he renewed his objections
regarding being ―ready‖ on the day of trial, he did not present a written verified motion for
continuance with a supporting affidavit.               Because B.W.’s motion for continuance was not in
writing, verified, or supported by an affidavit, the trial court did not abuse its discretion in denying
the motion. See Villegas, 711 S.W.2d at 626; Garner, 244 S.W.3d at 858. Accordingly, B.W.’s
fourth issue is overruled.


                                                     DISPOSITION
         Having overruled V.H.’s five issues and B.W.’s four issues, we affirm the judgment of the
trial court.


                                                       ___BRIAN HOYLE__
                                                          Justice

Opinion delivered June 25, 2013.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                      (PUBLISH)



                                                                8
                                 COURT OF APPEALS
      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
                                          JUDGMENT

                                            JUNE 25, 2013


                                        NO. 12-13-00026-CV


                         IN THE INTEREST OF B.G.W., A CHILD


                            Appeal from the 3rd Judicial District Court
                      of Henderson County, Texas. (Tr.Ct.No. 2009-C-017)


                      THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                      It is therefore ORDERED, ADJUDGED and DECREED that the judgment of
the court below be in all things affirmed, and that this decision be certified to the court below for
observance.
                      Brian Hoyle, Justice.
                      Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




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