author: ANN CRAWFORD McCLURE, Justice.

text:
    Ricardo CORRALES and Zulema Frias, Appellants, v. DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES, Appellee.
    No. 08-04-00026-CV.
    Court of Appeals of Texas, El Paso.
    Nov. 18, 2004.

      Alex A. Melendez, John L. Williams, El Paso, for Appellants.
    Lana Shadwick, Texas Department of Protective & Regulatory Services, Houston, Lyda Ness, El Paso, for Appellee.
    Lucia Quevedo, El Paso, court appointed advocate for the children.
    Before Panel No. 2 BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION

ANN CRAWFORD McCLURE, Justice.

This is an accelerated appeal pursuant to Texas Family Code section 263.405(a). See Tex.Fam.Code Ann. § 263.405(a)(Ver-non 2002)(since September 1, 2001, an appeal from a final order terminating the parent-child relationship and appointing another as managing conservator is accelerated and governed by the rules for accelerated appeals in civil cases). The Texas Department of Protective and Regulatory Services filed a petition to terminate the parental rights of Zulema Frias and Ricardo Corrales as to three of their five children. The jury found that the parent-child relationship should be terminated and named the Department as managing conservator. On appeal, the parents complain of evidentiary error and the failure of the court to appoint the maternal grandmother as managing conservator. We affirm.

FACTUAL SUMMARY

Frias and Corrales began living together in 1997 and married in January 2000. Their first child, Jason, was born with physical problems including blindness and mental retardation. He tested positive at birth for alcohol and cocaine. When he was released from the hospital, Frias’s mother, Maria Elena Olivas, took him home with her. She was responsible for his oxygen machine and heart monitor. Frias eventually relinquished her parental rights to Jason and Olivas adopted him.

The three children at issue are David Justin Frias, Ricardo Con-ales, Jr., and Joylin Zulema Corrales. Justin was born with pallet problems causing a speech impediment. Olivas cared for him from the time he was six or seven months old. She has cared for Ricardo, Joylin, and Jeremiah, the youngest child, since birth. The case involving Jeremiah was still pending at the time of trial, and he was living with Olivas.

Corrales is in jail in Juarez, Mexico for possession of heroin. He has been in and out of jail five times during the marriage and is scheduled for release in December 2005. It was his intention that Olivas care for the children while he was incarcerated.

Frias testified she has been using drugs for nine years, is addicted to cocaine, and had used cocaine as recently as three weeks before trial. She admitted that she used drugs during her pregnancies. Both her husband and her mother were aware of her drug use and Olivas had been taking care of the children because of it. Frias claimed that she did not use drugs in front of her children. She described her withdrawal symptoms as anxiety, vomiting, diarrhea, and insomnia, and she acknowledged that she was unable to care for the children in that condition. Frias also admitted that she had been arrested numerous times for theft, driving while intoxicated, family disturbance, and prostitution.

The Department began its investigation in March 2001 because of an allegation that Olivas’s boyfriend, Manuel Payan, had physically abused Ricardo. Georgina Estrada Martinez, an intake investigator for the Department, was unable to determine whether the abuse occurred. The child suffered no injuries and was unable to verbalize what had happened due to a speech impediment and developmental delay. But Martinez did conclude that Frias had neglected to properly supervise Justin and Ricardo to the extent that the home was not an appropriate environment for them. Payan was arrested for assaulting Frias and for injury to a child. A sixty-day protective order banned Payan from the home. Martinez informed Corrales about the circumstances, but he wanted the children placed with Olivas or an aunt and expressed no concern about the domestic violence in the home.

Martinez also met with Frias and noticed fresh track marks on her arms. Fri-as was pregnant with Joylin at the time. She was using cocaine every other day and had received no prenatal care. Martinez also spoke to Olivas, who confirmed Frias’s drug usage. Frias was placed in a drug treatment program. Justin was placed with Olivas while Ricardo was placed with Frias’s sister Annabelle. Olivas was instructed that Frias should not be in the home. The case was then assigned to John Estrada in the family preservation unit at the Department.

Estrada testified that he had tried to preserve the family for a year and a half during which he had concerns about the children’s well being due to their mother’s drug use. Frias and Olivas were offered a number of services including drug treatment, day care for the children, referrals to the Texas Workforce Commission, and assistance with housing. They ultimately terminated the day care service because it was too difficult to get all the children downstairs from the grandmother’s second floor apartment to be picked up. Frias lived with her mother off and on and would visit the children when she was not living there. Despite the Department’s instructions, Olivas allowed Frias ready access to the children.

In August 2002, Estrada conducted a routine home visit and found the three children alone with Frias. She appeared to be anxious, hung over, under the influence of drugs, and aggressive. The children appeared to be taking care of themselves. The house was in disarray and there were knives on the kitchen table within reach of the children. Frias told him she had used cocaine the night before and had been involved in an altercation. She explained she was watching the children because Olivas had taken Jason to register for school. The children were removed from their grandmother and placed in foster care. Estrada believed that caring for four children under eight years of age was a handful for one person. These circumstances were even more difficult because one of the children was blind and mentally retarded. Estrada testified that Olivas had contacted him because she felt overwhelmed.

Frias testified that she wanted the children placed with Olivas if parental rights were terminated because she wanted to continue to see them. The children loved their grandmother and would cry when they were taken back to the foster home. Frias claimed her mother took good care of the children whereas they had experienced problems in foster care. Joylin suffered from diaper rash and was neglected when the foster mother’s grandchild came to stay. Ricardo was beaten and always had some kind of injury. Justin was scolded and punished by the foster mother and was now hyperactive and on medication. He had been in the first grade but was put back into kindergarten. Frias complained to the case worker about the foster care.

She also described the children’s interaction with their other siblings at their grandmother’s house. Jason loved the children and would cry when the visits ended. The children would also ask for Jason. She admitted that four of her brothers and sisters had a drug-related criminal history, but her eleven nieces and nephews had spent time with the children.

Case worker Eunice Buendia asked the jury to terminate the parental rights and to appoint the Department as managing conservator. She saw problems with allowing the grandmother to parent the children. Two homes studies were negative. Olivas could not read or write. She was still dating Payan. She minimized her children’s drug usage. She already cared for a special needs child who was blind and mentally retarded. She was unable or unwilling to keep Frias away from the children, was involved in altercations with Fri-as about money, and had been arrested herself. Buendia admitted that another home study had been conducted back in 1998, and the home was determined to be appropriate for Jason. She conceded that his needs were being met and there was no eminent danger to Jeremiah, the youngest child. But she did not waiver in her view that the home was not appropriate for these three children.

Family therapist Martha Dominguez and counselor Blanch Kelly testified that Frias had been referred to them for services but never showed up for her appointments. Marriage and family therapist Ili-ana Jacobson provided services for Frias and thera-play sessions for Frias, the foster mother, and the three children. Jacobson testified that Frias recognized the loss suffered by her children due to her drug use but did not understand the resulting emotional damage. She characterized Fri-as as unmotivated since she did not believe she had a drug problem. While Frias characterized her family as supportive, Jacobson felt that the family was enabling her addiction. Frias was cooperative during the thera-play sessions and attended six of eight sessions. Justin was initially cooperative but began to withdraw and did not respond to hugs from his mother. Jacobson was concerned about the relationship because the child seemed oppositional. Ricardo and Joylin were hyperactive at the first few sessions but later improved and responded to structure. Jacobson found that the children needed constant supervision. She had no concerns about the children while in the care of their foster parents and found that the children had a bond with their foster mother.

Psychotherapist Sergio Medina testified that Justin was very protective about his early life and had severe speech delay which was improving with therapy. He seemed to have a bond with his foster mother but had expressed a desire to live ■with Frias. The child also felt close to Olivas and wanted to live with her. Medina found that Justin did not play well with his siblings and needed structure, supervision, attention, redirection, and help in school since he was behind his age group in learning. At the time of trial, Justin was taking three medications — Zyprexa for bipolar manic disorder, Premarin for depression, and Adorexal for hyperactivity. Medina wanted to use behavior modification to wean Justin off the medications. He believed Justin’s depression had improved and his aggression and lying had decreased although there were still isolated incidents of stealing. Medina reported there was a high risk that the problems would worsen if he returned to his prior environment. It was in Justin’s best interest to be in a drug- and violence-free home. Medina explained that the foster mother had initially indicated a desire to adopt Justin but had moved away from the idea because of the child’s behavior. He admitted it may be difficult to find Justin a home. While foster care had demonstrated that the three children could live and learn together, Medina believed the children should be separated due to Justin’s needs for attention and the contemptuous relationship between the siblings.

Lucia Margarita Quevedo, the court-appointed guardian ad litem, concluded it was not in the children’s best interest to have a continuing relationship with their biological family. Although the grandmother had expressed a desire to care for the children, Quevedo believed that Olivas was not able to care for five young children on her own, that Frias would be in and out of the children’s lives, and that Frias’s siblings were not a positive influence on the children. Justin had expressed a desire to stay with his foster parents and never mentioned living with his grandmother. Due to speech therapy, Justin and Ricardo were making progress. The foster mother helped Justin with his exercises and homework and the children had a relationship with her twelve-year-old son.

Olivas testified that only her daughter Magdalena spent a significant amount of time at her home. She denied allowing Frias access to the children. Drugs were not used in her home although she had seen Frias under the influence. The children played well together, and Justin behaved since she did not allow fighting. The children suffered no injuries while in her care, and she denied telling Estrada that she felt overwhelmed by the burden. She considers the children to be her own, and they call her grandmother and cry when the visits end. Olivas said the children wanted to live with her and she believed it was in their best interest to remain in her care. She planned to bathe the children at night so she could get them to school in the morning. She promised to take Justin and Ricardo to speech therapy. She also felt she was a better parent now due to her experience and age.

EVIDENTIARY ERROR

In Point of Error One, Appellants contend that the trial court erred in admitting police reports which contained inadmissible hearsay. They argue that the reports contained the results of police investigations which included testimony from witnesses who were not present for trial and unavailable for cross-examination.

The police reports were introduced during the direct examination of Crystal Bar-raza, custodian of records for the El Paso Police Department. Counsel for the Department laid the predicate to admit the reports as business records. Counsel for Frias objected as to relevance and hearsay. Counsel for Corrales argued that the reports were more prejudicial than probative. The judge overruled the objections.

Standard of Review

The admission and exclusion of evidence is committed to the trial court’s sound discretion. Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex.1989). A trial court abuses its discretion when it acts without regard for any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986). Stated differently, the appropriate inquiry is whether the ruling was arbitrary or unreasonable. Smithson v. Cessna Aircraft Company, 665 S.W.2d 439, 443 (Tex.1984); Landry v. Travelers Insurance Co., 458 S.W.2d 649, 651 (Tex.1970). The mere fact that a trial judge may decide a matter within his discretionary authority in a different manner than an appellate judge in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Southwestern Bell Telephone Co. v. Johnson, 389 S.W.2d 645, 648 (Tex.1965); Jones v. Strayhorn, 159 Tex. 421, 321 S.W.2d 290, 295 (1959).

The Applicable Rules

“Hearsay is not admissible except as provided by statute or these rules or by other rules prescribed pursuant to statutory authority. Inadmissible hearsay admitted without objection shall not be denied probative value merely because it is hearsay.” Tex.R.Evid. 802. Rule 803 provides exceptions to the exclusionary nature of Rule 802. Subsection (6) provides an exception for business records:

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by affidavit that complies with Rule 902(10), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. ‘Business’ as used in this paragraph includes any and every kind of regular organized activity whether conducted for profit or not.

Tex.R.Evid. 803(6). Subsection (8) states the exception for public records:

Records, reports, statements, or data compilations, in any form, of public offices or agencies setting forth: (A) the activities of the office or agency; (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding in criminal cases matters observed by police officers and other law enforcement personnel; or (C) in civil cases as to any party and in criminal cases as against the state, factual findings resulting from an investigation made pursuant to authority granted by law; unless the sources of information or other circumstances indicate lack of trustworthiness.

Tex.R.Evid. 803(8).

Appellants’ Arguments

Appellants argue that the police reports did not fall within the category of records kept in the regular course of business since the officer compiling the report may be the source of the knowledge but not have personal knowledge of the events. In support of this argument, they direct us to Cole v. State, 839 S.W.2d 798, 811-12 (Tex.Crim.App.1992).

In Cole, the defendant was convicted of aggravated sexual assault. At issue was whether the trial court properly admitted hearsay evidence concerning the results of testing performed by a chemist who was unavailable at trial. The State had sought to introduce letter reports from the chemist in which he disclosed the results of tests conducted upon physical evidence collected upon the medical examination of the victim. The reports were admitted through the testimony of the supervising chemist at the same laboratory. On appeal, the defendant argued that the admission of the chemist’s hearsay statement was in contravention of that portion of Rule 808(8)(B) which prohibits as hearsay “matters observed by police officers and other law enforcement personnel.” The Court of Criminal Appeals concluded that the letter reports were inadmissible since they involved “matters observed” by “other law enforcement personnel.” Id. at 805. The court then considered whether hearsay evidence which does not qualify as a public record could nevertheless qualify as a business record. Believing this to be inconsistent with the intended effect of the rules, the court concluded that Rule 803(6) could not be used as a “back door” for evidence inadmissible under Rule 803(8)(B). Id. at 811.

Appellants also argue that the reports were not admissible as public records and direct our attention to Kratz v. Exxon, 890 S.W.2d 899 (Tex.App.-El Paso 1994, no writ). There, the plaintiff tried to admit the written statements of two eyewitnesses pursuant to the public records- exception. Id. at 904. This court found in dicta that the statements did not fit within the exception since they did not set forth the activities of the office or agency, did not involve matters observed pursuant to a duty imposed by law as to which there was a duty to report, and did not constitute factual findings resulting from an investigation made pursuant to authority granted by law. Id. at 905. In a footnote, the court stated that “[r]ule 803(8) would be applicable only if the statement were prepared by public officials or employees under their supervision in the performance of their official duties.” Id. at n. 3. While the officer’s factual findings in the report qualified as a public record, the statements of the witnesses did not. Id. at n. 5; see also Carter v. Steere Tank Lines, Inc., 835 S.W.2d 176 (Tex.App.-Amarillo 1992, writ denied)(holding accident report admissible but not the statements contained within the report).

Application

Generally speaking, the police reports were admissible as a public record. They set forth the activities of the police department, involved matters observed pursuant to a duty imposed by law as to which there was a duty to report, and contained factual findings resulting from an investigation made pursuant to authority granted by law. Tex.R.Evid. 803(8). Moreover, the exclusion of matters observed by police officers and other law enforcement personnel applies only to criminal proceedings. See TexR.Evid. 803(8)(B).

We recognize of course that the records also contained statements by witnesses which did not qualify as public records. See Kratz, 890 S.W.2d at 905, n. 3. Nevertheless, the rule provides that the reports are admissible unless the sources of information indicate a lack of trustworthiness. See Tex.R.Evid. 803(8). In other words, there is a presumption of admissibility and the burden is placed on the party opposing the admission of a report to show its untrustworthiness. Beavers v. Northrop Worldwide Aircraft Services, Inc., 821 S.W.2d 669, 675 (Tex.App.-Amarillo 1991, writ denied). Appellants objected on the basis that the reports included testimony from witnesses not at trial, but did not specifically indicate which statements were untrustworthy. We conclude they have failed to meet them burden to show untrustworthiness. See Beavers, 821 S.W.2d at 675.

Harm Analysis

Even assuming error occurred, Appellants still must demonstrate harm. Tex.R.App. P. 44.1. To constitute an abuse of discretion, we must find that the error probably caused the rendition of an improper judgment. See Tex.R.App.P. 44.1(a)(1). A successful challenge to evidentiary rulings usually requires the complaining party to show that the judgment turns on the particular evidence excluded or admitted. Texas Dept. of Transp. v. Able, 35 S.W.3d 608, 617 (Tex.2000). Appellants argued that admission of the reports was harmful to Frias and may have prejudiced the jury on naming the managing conservator of the children since a number of the records mentioned the grandmother and portrayed her in a less than flattering light.

In determining if the evidence probably resulted in the rendition of an improper judgment, we must review the entire record. Id. Reversible error seldom occurs when the evidence in question is cumulative and not controlling on a material issue dispositive of the case. Gee, 765 S.W.2d at 396, citing Whitener v. Traders and General Ins. Co., 155 Tex. 461, 289 S.W.2d 233, 236 (1956). The police reports encompassed the following incidents: a complaint against Frias for the use of cocaine causing premature delivery of her child; Frias’s arrest for theft from Dillard’s; her arrest for theft from the Family Dollar; her arrest for theft from her mother; her arrest for prostitution; her arrest for interfering with an investigation; her two arrests for driving while intoxicated; her arrest on an outstanding warrant; a report of her assault on her mother; a complaint against Manuel Payan for assault; his arrest for injury to a child; and Mario Gandara’s arrest for possession of marijuana.

Frias testified that she had been arrested on many occasions for theft, driving while intoxicated, family disturbances, assault, interfering with an investigation, and prostitution. She admitted using cocaine during all her pregnancies. One of her children was born addicted to drugs and was blind and mentally retarded; another was born prematurely due to her drug usage. An investigator for the Department testified that there had been allegations of physical abuse by Manuel Payan against both Frias and one of the children.

Based on the record, we conclude that admission of the police reports was merely cumulative of the evidence already in the record. Appellants have failed to show that error, if any, probably caused the rendition of an improper judgment. Point of Error One is overruled.

APPOINTMENT OF A MANAGING CONSERVATOR

In Point of Error Two, Appellants complain that the trial court abused its discretion in failing to appoint the grandmother as managing conservator of the children. The jury charge included the following question:

Should the Texas Department of Protective and Regulatory Services or a Suitable, Competent Adult be named managing conservator of the children?
Answer by writing ‘DEPARTMENT’ or ‘SUITABLE, COMPETENT ADULT’ (SPECIFY) as to each child.

The jury named the Department as each child’s managing conservator.

Standard of Review

At the outset we find it necessary to re-frame the issue on appeal. In contending that the trial court abused its discretion, Appellants specifically reference Section 161.207 of the Family Code, which provides in pertinent part that if the court terminates the parent-child relationship with respect to both parents, it shall appoint a suitable, competent adult or the Department as managing conservator. Tex.Fam.Code Ann. § 161.207(a). This section must be read in conjunction with Section 105.002, which authorizes jury trials in all suits affecting the parent-child relationship except a suit in which adoption is sought and a suit to adjudicate parentage. More importantly, subsection (c)(1)(A) mandates that the court may not contravene a jury verdict concerning the appointment of a sole managing conservator. Simply stated, the court may not enter a judgment notwithstanding the verdict. Lenz v. Lenz, 79 S.W.3d 10, 20 (Tex.2002); In re Marriage of Robinson, 16 S.W.3d 451, 454 (Tex.App.-Waco 2000, no pet.). It had no discretion to do otherwise. Consequently, we must disagree with all parties that the appropriate standard of review is whether the trial court abused its discretion. Certainly they are accurate in reciting that most orders arising from a suit affecting the parent-child relationship will not be disturbed on appeal unless the complaining party can demonstrate a clear abuse of discretion. But all of the supporting authority for this proposition involves bench trials. See Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990); Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex.1982); Bates v. Tesar, 81 S.W.3d 411, 424 (Tex.App.-El Paso 2002, no pet.); Hodson v. Keiser, 81 S.W.3d 363, 367 (Tex.App.-El Paso 2002, no pet.). Here, the appropriate challenge must be directed to a traditional sufficiency review: Is the evidence legally and factually sufficient to support the jury’s finding that appointing the Department as the children’s managing conservator was in their best interest? Lenz, 79 S.W.3d at 16-17.

A “no evidence” or legal insufficiency point is a question of law which challenges the legal sufficiency of the evidence to support a particular fact finding. The standard of review requires a determination as to whether, considering only the evidence and inferences that support a factual finding in favor of the party having the burden of proof in a light most favorable to such findings and disregarding all evidence and inferences to the contrary, there is any probative evidence which supports the finding. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965); Dayton Hudson Corp. v. Altus, 715 S.W.2d 670 (Tex.App.-Houston [1st Dist.] 1986, writ ref'd n.r.e.); Terminix International Inc. v. Lucci, 670 S.W.2d 657 (Tex.App.-San Antonio 1984, writ ref'd n.r.e.); Southwest Craft Center v. Heilner, 670 S.W.2d 651 (Tex.App.-San Antonio 1984, writ ref'd n.r.e.).

There are basically two separate “no evidence” claims. When the party having the burden of proof suffers an unfavorable finding, the proper challenge is that the fact was established as “a matter of law.” When the party without the burden of proof suffers an unfavorable finding, the challenge on appeal is one of “no evidence to support the finding.” See Creative Manufacturing, Inc. v. Unik, 726 S.W.2d 207 (Tex.App.-Fort Worth 1987, writ ref'd n.r.e.). The latter applies here.

“Insufficient evidence” or factual insufficiency involves a finding that is so against the great weight and preponderance of the evidence as to be manifestly wrong. The test for factual insufficiency is set forth in In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). We must consider all of the evidence, both the evidence which tends to prove the existence of a vital fact as well as evidence which tends to disprove its existence. If the verdict is so contrary to the great weight and preponderance of the evidence as to be manifestly unjust, the point should be sustained. This is true even if the finding is supported by more than a scintilla of evidence and even though reasonable minds might differ as to the conclusions to be drawn from the evidence.

There are two distinct complaints here as well. When the party having the burden of proof complains of an unfavorable finding, the point of error should allege that the findings “are against the great weight and preponderance of the evidence.” The “insufficient evidence” point of error is appropriate only when the party without the burden of proof on an issue complains of the fact findings. Neily v. Aaron, 724 S.W.2d 908 (Tex.App.-Fort Worth 1987, no writ). Again, the latter is applicable here.

Preservation of Eiror

We are unable to consider Appellants’ factual sufficiency complaints. As we have noted, the case was tried to a jury rather than to the bench. Rule 324(b) requires that a complaint of factual insufficiency of the evidence to support a jury finding must be raised in a motion for new trial. Tex.R.Civ.P. 324(b). Because no motion for new trial was filed, the error has been waived. We will consider legal sufficiency.

Applicable Law

If the court terminates the parent-child relationship with respect to both parents or to the only living parent, the court shall appoint a suitable, competent adult, the Department of Protective and Regulatory Services, a licensed child-placing agency, or an authorized agency as managing conservator of the child. An agency designated managing conservator in an unrevoked or irrevocable affidavit of relinquishment shall be appointed managing conservator. Tex.Fam.Code Ann. § 161.207(a). The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child. Tex.Fam.Code Ann. § 153.002 (Vernon 2002).

Appellants rely on Holley v. Adams, 544 S.W.2d 367 (Tex.1976) as enumerating the principal balancing factors used to determine the best interest of the child. The charge instructed the jury to consider these same factors. In 1993 the Legislature codified Holley, incorporating additional factors for the court to consider when reviewing the placement of children under the care of the Department. In re J.R.P., 55 S.W.3d 147, 151-52 (Tex.App.Corpus Christi 2001, review denied); see Act of June 19, 1993, 73rd Leg., R.S., ch. 842, 1993 Tex.Gen.Laws 3318 (amended 1995)(current version at Tex.Fam.Code Ann. § 263.307 (Vernon 2002)). Section 263.307 provides the following factors for determining the best interest of the child:

(1) the child’s age and physical and mental vulnerabilities;
(2) the frequency and nature of out-of-home placements;
(3) the magnitude, frequency, and circumstances of the harm to the child;
(4) whether the child has been the victim of repeated harm after the initial report and intervention by the department or other agency;
(5) whether the child is fearful of living in or returning to the child’s home;
(6) the results of psychiatric, psychological, or developmental evaluations of the child, the child’s parents, other family members, or others who have access to the child’s home;
(7) whether there is a history of abusive or assaultive conduct by the child’s family or others who have access to the child’s home;
(8) whether there is a history of substance abuse by the child’s family or others who have access to the child’s home;
(9) whether the perpetrator of the harm to the child is identified;
(10) the willingness and ability of the child’s family to seek out, accept, and complete counseling services and to cooperate with and facilitate an appropriate agency’s close supervision;
(11) the willingness and ability of the child’s family to effect positive environmental and personal changes within a reasonable period of time;
(12) whether the child’s family demonstrates adequate parenting skills, including providing the child and other children under the family’s care with:
(A) minimally adequate health and nutritional care;
(B) care, nurturance, and appropriate discipline consistent with the child’s physical and psychological development;
(C) guidance and supervision consistent with the child’s safety;
(D) a safe physical home environment;
(E) protection from repeated exposure to violence even though the violence may not be directed at the child; and
(F) an understanding of the child’s needs and capabilities; and
(13) whether an adequate social support system consisting of an extended family and friends is available to the child.

Tex.Pam.Code Ann. § 263.307(a), (b). We will review the evidence in the context of these factors, considering as we must only the evidence and inferences tending to support the jury’s finding and disregarding all evidence and inferences to the contrary.

Analysis

First, the record showed that the children’s ages and mental vulnerabilities supported the jury’s finding. See Tex.Fam. Code Ann. § 263.307(b)(1). At the time of trial, the children were six, three, and two respectively. Justin was born with pallet problems and had a speech impediment. When the Department removed the children from Olivas’s home, the house was in disarray, the children were taking care of themselves, and there were knives on the table in reach of the children. A Department investigator testified that the children had been aggressive. At thera-play sessions, Iliana Jacobson found Justin to be withdrawn and unresponsive to his mother. The other two children were hyperactive but later improved and responded to structure. Justin’s psychotherapist stated that Justin was on three medications for depression, hyperactivity, and bipolar manic disorder. His behavior had improved with medication but he feared it would regress if he returned to his prior environment. CASA volunteer Margarita Quevedo testified that Justin’s and Ricardo’s speech had improved with therapy.

Second, the record demonstrated that there was a history of substance abuse by the family or others who had access to the grandmother’s home. See Tex.Fam.Code Ann. § 263.307(b)(8). The children were ultimately removed from the home since they were left alone with their mother in contravention of Department instructions. After one of Frias’s arrests, the Department asked Olivas to notify them when Frias was released. Olivas failed to do so and the Department finally located Frias at Olivas’s home. Frias admitted that she was addicted to cocaine and had used cocaine during all five of her pregnancies. Olivas knew about her daughter’s drug use and did nothing to help her with her problem. Jacobson characterized Frias’s family as enablers of her drug addiction. While both Frias and Olivas insisted that drugs were not used around the children, Justin told his psychotherapist that his mother poked needles into her arms. Oli-vas also admitted that Frias would come to the house while still under the influence of drugs. Four of Frias’s brothers and sisters had a drug-related criminal history, yet Olivas minimized her children’s drug use or professed ignorance of it. The ad litem testified that Frias would be in and out of the children’s fives if they were to five with them grandmother and that Fri-as’s siblings were not a good influence.

Third, the record reveals a history of abusive or assaultive conduct by the family or others who had access to the home. See Tex.Fam.Code Ann. § 268.307(b)(7). The Department received the case initially because of complaints that Olivas’s boyfriend had physically abused Ricardo. Although the Department was unable to determine whether the abuse occurred, Payan was arrested for assault of Olivas and for injury to a child. A sixty-day protective order was entered prohibiting Payan from the home. Yet at the time of trial, Olivas was still dating him. Olivas and Frias had repeated altercations and Frias was arrested for stealing from her mother.

Fourth, the record showed that Olivas lacked proper parenting skills. See Tex. Fam.Code Ann. § 263.307(b)(12). Case worker Eunice Buendia testified that she had concerns that there were too many children in the home and Olivas did not discipline them. She had a second-grade education and could not read or write. She was already caring for Jason who was blind and mentally retarded. Therapist Uiana Jacobson stated that the children needed constant supervision. Justin’s therapist testified that he particularly needed structure, supervision, attention, redirection, and help in school. Several witnesses questioned the grandmother’s ability to care for five young children on her own, especially when she had already complained of feeling overwhelmed.

We conclude the evidence is legally sufficient to support the jury’s determination that the best interest of the children would be better served by appointing the Department as managing conservator. We overrule Point of Error Two and affirm the judgment of the trial court.


source: Caselaw Access Project

author: CATHERINE STONE, Justice.

license: Public Domain

text:
    Octavio MARTINEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 04-03-00746-CR.
    Court of Appeals of Texas, San Antonio.
    Nov. 24, 2004.

      Jennifer S. Nisbet, San Antonio, for appellant.
    Scott Roberts, Asst. Criminal Dist. Atty., San Antonio, for appellee.
    Sitting: ALMA L. LÓPEZ, Chief Justice, CATHERINE STONE, Justice, SARAH B. DUNCAN, Justice.
   OPINION

Opinion by

CATHERINE STONE, Justice.

A jury found appellant, Octavio Martinez, guilty of driving while intoxicated. The trial court assessed punishment at one hundred and twenty days confinement, probated for one year, and fined Martinez seven hundred dollars. Martinez raises two issues in this appeal. He contends the prosecuting attorney failed to read the information in compliance with Article 36.01(a)(1) of the Texas Code of Criminal Procedure, thus committing reversible error. In addition, he claims the trial court erred in admitting retrograde extrapolation testimony of an intoxilyzer test administered sixty-two minutes after the stop, and that the intoxilyzer results were more prejudicial than probative. We affirm.

Factual and PROCEDURAL Background

On November 11, 2002, Officer Albert Byrom of the San Antonio Police Department pulled Octavio Martinez over after he observed Martinez speed out of an alley, narrowly miss hitting a fence, fail to stop at a stop sign, and fail to put on his blinker. When Martinez stepped out of his vehicle, he almost fell, could not stand or walk without holding onto his vehicle for support, and appeared unsteady on his feet. Officer Byrom noticed that Martinez had red, bloodshot eyes, slurred speech, and smelled of alcohol. Based on his observations, Officer Byrom called for backup to assist in administering a field sobriety test. Martinez was placed in handcuffs and continued to lean against his vehicle for support. He admitted he drank one beer approximately forty minutes before the stop. Officer Kevin Nogle arrived at the scene minutes later and performed two field sobriety tests, the vertical gaze nystagmus test and the horizontal gaze nystagmus (HGN) test. Martinez exhibited all six clues under the HGN and tested positive for vertical nystagmus. The officers testified that they did not conduct any other field sobriety tests because Martinez’s wife was screaming at him from the front yard, agitating Martinez and making it difficult to perform further tests. Officer Byrom placed Martinez under arrest for DWI and transported him downtown.

At the San Antonio magistrate court, Martinez consented to an intoxilyzer test. The test was conducted at 6:44 p.m., sixty-two minutes after the stop, and reflected Martinez had a blood alcohol content (BAC) of 0.273. Martinez gave a second breath sample two minutes later, at 6:46 p.m., and had a BAC of 0.277. Martinez was charged by information with driving while intoxicated under both definitions of the term; that is, he did not have normal use of mental and physical faculties due to the consumption of alcohol (“impairment theory” of intoxication), and his alcohol concentration was 0.08 or more (“per se” theory of intoxication). The jury charge included an instruction on impairment theory only.

Martinez filed a motion to suppress the results of his intoxilyzer breath tests along with any accompanying testimony. At the pre-trial suppression hearing, Martinez testified that he weighed 175-180 pounds on the date of the test (which is also noted in the police report), had not eaten since 8:00 p.m. the evening before his arrest, and had slept eight hours the night before. He testified he drank one Lone Star beer the day of the stop, which he consumed around 5:00 p.m. The trial court overruled the motion to suppress with respect to admission of the breath test results, but ruled that no quantification of the breath test results would be admissible.

Based on the personal information Martinez provided at the suppression hearing, the State sought to introduce retrograde extrapolation testimony at trial. The court re-opened Martinez’s motion to suppress, and Martinez objected on the basis the trial court had already ruled on the motion. The State responded that Martinez had provided enough information at the suppression hearing for the State to present extrapolation testimony in compliance with Mata v. State, 46 S.W.3d 902 (Tex.Crim.App.2001). A hearing was conducted outside the presence of the jury in which the trial court determined that sufficient Mata factors were present to provide a sufficient basis for the expert’s opinion. The trial judge reasoned that the intoxilyzer results were thus relevant and admissible.

ARTICLE 36.01(a)(1) analysis

In his first issue, Martinez contends the prosecuting attorney committed reversible error by failing to read the information to the jury in compliance with Article 36.01(a)(1) of the Texas Code of Criminal Procedure. Under Article 36.01(a)(1), the prosecutor must read the indictment or information to the jury. Tex.Code Crim. Pro. Ann. art. 36.01(a)(1) (Vernon Supp.2004-2005). The reading of the information is mandatory. Warren v. State, 693 S.W.2d 414, 415 (Tex.Crim.App.1985). The rationale for the rule is to inform the accused of the charges against him, to inform the jury of the charge at issue, and to allow the jury to hear the defendant refute or admit the charge. Id. Without the reading of the indictment and the entering of a plea, no issue is joined upon which to try. Id.

The record shows that the prosecutor read the information to the jury, but omitted the loss of use and per se definitions of intoxication. Martinez responded by entering a plea of not guilty. He did not object to the prosecutor’s reading of the information at that time. Martinez did not raise the issue of failure to read the entire information until the next day, prior to the testimony of the State’s last witness, and did not receive an adverse ruling from the trial court. As a prerequisite to presenting a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely request, objection, or motion that stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint. Tex.R.App. P. 33.1(a). A defendant has an obligation to lodge a timely objection to afford the trial court the opportunity to cure the defect. Id. Because Martinez did not timely object to the prosecutor’s reading of the information and filed no post-trial motions, Martinez has failed to properly preserve this complaint for our review. See id.; Warren, 693 S.W.2d at 416 (stating that the proper post-trial methods to preserve error when the trial court’s failure to read enhancement paragraphs in compliance with Article 36.01(a)(1) is discovered after trial are a motion for new trial, a bill of exception, or a motion to arrest the judgment). Martinez’s first issue is overruled.

RETROGRADE EXTRAPOLATION TESTIMONY

Martinez first argues that it was error for the trial court to reconsider its prior ruling on the motion to suppress regarding breath test results and retrograde extrapolation evidence. This court has previously recognized that “a ruling on a motion to suppress is an interlocutory decision that may be reconsidered by the trial judge.” State v. Henry, 25 S.W.3d 260, 262 (Tex.App.-San Antonio 2000, no pet.). Therefore, we overrule this argument and consider whether the trial court abused its discretion by modifying its previous ruling on the motion to suppress.

Martinez contends that the testimony of the State’s witness, Bexar County breath test technical supervisor George Allan McDougall, was irrelevant and unreliable. Even if we assume the trial court erred in admitting retrograde extrapolation evidence, the record does not reveal harmful error. The erroneous admission of retrograde extrapolation testimony is considered non-constitutional error. Bagheri v. State, 119 S.W.3d 755, 762-63 (Tex.Crim.App.2003). Therefore, we must disregard any such error unless it affected Martinez’s substantial rights. Tex.R.App. P. 44.2(b). An appellate court may not reverse for nonconstitutional error if the court, “after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect.” Solomon v. State, 49 S.W.3d 356, 365 (Tex.Crim.App.2001). We must consider the entire record, including testimony evidence, voir dire, closing arguments and jury instructions to determine whether the jury was affected. Bagheri, 119 S.W.3d at 763; Motilla v. State, 78 S.W.3d 352, 355-56 (Tex.Crim.App.2002). We should also consider the nature of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with other evi: dence in the case, whether the State emphasized the error, whether the erroneously admitted evidence was cumulative, and whether it was elicited from an expert. Bagheri, 119 S.W.3d at 763.

Our examination of the entire record leads to the conclusion the error, if any, was harmless. Retrograde extrapolation was never mentioned during voir dire. The State informed the jurors during voir dire that “to be legally intoxicated means that a defendant did not have the normal use of his mental faculties by the reason of the introduction of alcohol into his body, or did not have the normal use of his physical faculties.” The jurors were asked what they considered evidence of intoxication, and their responses included slurred speech, reckless driving, difficulty making decisions, staggering and loss of balance, strong odor of alcohol, not being able to stand or walk, and having a carefree attitude. The prosecutor mentioned during voir dire that there would be “breathalyzer test” evidence, but none of the jurors indicated they would give special weight to such evidence. Cf. Bagheri, 119 S.W.3d at 764.

During his opening statement, the prosecutor recited a list of evidence he said would prove Martinez was guilty of driving while intoxicated, but this list did not include references to retrograde extrapolation testimony. The State explained that the testimony of its three witnesses would prove Martinez’s impairment. McDou-gall’s retrograde extrapolation testimony was not mentioned until closing arguments. The State referred to Martinez’s breath test results as evidence he had consumed more alcohol than he admitted. McDougall’s retrograde extrapolation testimony was referred to as evidence that Martinez had lost his mental and physical faculties. On the record as a whole, we do not find that retrograde extrapolation testimony was emphasized.

Importantly, McDougall’s testimony was cumulative because there was other significant evidence that Martinez was impaired. Unlike the situation in Bagheri, we know which theory the jury relied on in assessing their verdict. The jury charge included’an instruction that intoxication “means not having the normal use of mental or physical faculties by reason of the introduction of alcohol into the body.” To prove impairment, the State generally relies on eyewitness testimony and field sobriety tests. See State v. Mechler, 123 S.W.3d 449, 455 (Tex.App.-Houston [14th Dist.] 2003, pet. granted June 9, 2003). There was testimony from Officer Byrom that Martinez sped out of an alley and nearly hit a fence. Martinez nearly fell getting out of his vehicle and could not stand or walk without clutching the vehicle for support. All three police officers who had observed Martinez testified he exhibited several symptoms of impairment. The officers testified that Martinez appeared disoriented, slurred his speech, had bloodshot eyes, staggered, and swayed. Officer Byrom testified that Martinez “bamblast-ed” him with the smell of alcohol. Further, it is uncontested that Martinez failed two field sobriety tests. Field sobriety tests are a reflection of the degree to which the defendant’s normal mental and physical faculties are impaired from the introduction of intoxicants into the system and constitute circumstantial evidence the defendant is impaired. See Emerson v. State, 880 S.W.2d 759, 769 (Tex.Crim.App.1994) (recognizing that the HGN test is a reliable indicator of impairment). Officer Nogle testified that Martinez exhibited all six clues on the HGN and also had vertical nystagmus, which indicated he had drank excessively.

Martinez’s main defensive theory was to deny he exhibited any signs of impairment. He admitted that his breath smelt like alcohol because he had consumed alcohol at 5:00 p.m. He said he has a skin condition that makes his face red. He denied speeding out of the alley, nearly hitting a fence, or committing any traffic infractions. Martinez also denied ever being unsteady on his feet, leaning on his van for support, slurring his speech, staggering or swaying. He said the police were lying. The jury was free to assess the credibility of the witnesses in determining whether Martinez was legally intoxicated.

Given the State’s slight emphasis of the retrograde extrapolation testimony, the relative weakness of Martinez’s defensive theories, and the strength of the State’s case, we can say with fair assurance that the admission of the retrograde extrapolation testimony had, at most, a slight effect. We therefore conclude the error, if any, should be disregarded.

Relevance of Intoxilyzer Breath Test Results and Rule 403 Analysis

We turn now to the intoxilyzer results. Martinez urges that the intoxilyzer results were irrelevant and constituted no evidence under Stewart v. State, 103 S.W.3d 483 (Tex.App.-San Antonio 2003), rev’d 129 S.W.3d 93 (Tex.Crim.App.2004). We held in StewaH that breath test results are unreliable and constitute no evidence without reliable retrograde extrapolation testimony. Id. at 486. The Texas Court of Criminal Appeals held, however, that evidence of breath test results is both probative and admissible even in the absence of retrograde extrapolation testimony. Stewart v. State, 129 S.W.3d 93, 97 (Tex.Crim.App.2004) (“the breath test results were pieces in the evidentiary puzzle for the jury to consider in determining whether Stewart was intoxicated at the time she drove.”). We hold that the breath test results were relevant and properly admitted evidence to consider with the State’s other evidence of Martinez’s impairment. See id.

Martinez argues that even if the intoxilyzer results are relevant, the evidence should have been excluded under Rule 403 of the Texas Rules of Evidence. All evidence is admissible under Rule 403 unless “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.” Tex.R. Evid. 403. Rule 403 carries with it a presumption that relevant evidence is more probative than prejudicial. Hayes v. State, 85 S.W.3d 809, 815 (Tex.Crim.App.2002); Jones v. State, 944 S.W.2d 642, 652 (Tex.Crim.App.1996). In order to exclude relevant evidence, we look for a “clear disparity between the degree of prejudice of the offered evidence and its probative value.” Mozon v. State, 991 S.W.2d 841, 847 (Tex.Crim.App.1999). We consider several factors when determining whether the probative value of evidence is substantially outweighed by the danger of unfair prejudice, including: 1) the evidence’s inherent probative value; 2) the potential the evidence has to impress the jury in some irrational but nevertheless indelible way; 3) the time the proponent will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense; and 4) the force of the proponent’s need for this evidence to prove a fact of consequence. Manning v.State, 114 S.W.3d 922, 926 (Tex.Crim.App.2003); Mozon, 991 S.W.2d at 847. The trial court’s ruling on the admissibility of evidence is reviewed under an abuse of discretion standard, and we will not intercede unless the trial court’s ruling falls outside the zone of reasonable disagreement. Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App.2000); Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1990).

Martinez’s argument that admission of his intoxilyzer results was more prejudicial than probative is unpersuasive. First, the intoxilyzer test results were probative of whether Martinez consumed alcohol before operating a motor vehicle and whether he was impaired as a result of his alcohol consumption. See Stewart, 129 S.W.3d at 96 (holding that intoxilyzer test results are probative evidence of intoxication under either theory); Verbois v. State, 909 S.W.2d 140, 141-42 (Tex.App.-Houston [14th Dist.] 1995, no pet.) (holding that intoxilyzer results are probative as to whether an individual has consumed alcohol). Second, the intoxilyzer test results would not have impressed the jury in some irrational but indelible way. The jury was instructed that to convict Martinez, they needed to find he was intoxicated as a result of the introduction of alcohol into his body, and that as a result of the alcohol consumption he had lost his mental and physical faculties at the time he drove. The intoxilyzer results tended to prove Martinez had consumed more alcohol than he admitted, thus going to the charged offense. See Manning, 114 S.W.3d at 928 (holding that evidence is not “unfairly prejudicial” under a Rule 403 balancing test when it specifically pertains to an allegation in the indictment). Third, because the intoxilyzer results were proof of the charged offense, the amount of time the State spent developing the evidence is inconsequential sinc'e it could not have distracted the jury from the charged offense. Fourth, we consider whether the State needed the evidence to prove Martinez’s intoxication. As discussed previously, the State had other evidence Martinez was impaired as a result of alcohol consumption: the three officers’ eyewitness testimony that Martinez exhibited symptoms of impairment and smelled of alcohol; the field sobriety tests; and , Martinez’s own admission that he had consumed alcohol. Although the intoxilyzer results tended to show Martinez had consumed more alcohol than he admitted, we do not find the State’s nqed for the evidence was great in view of the other evidence the State had to establish Martinez’s -intoxication. Nonetheless, balancing the aforementioned factors, we find that there is not a clear disparity between the degree of prejudice of Martinez’s intoxilyzer results and their probative value. Martinez’s second issue is overruled.

Conclusion

Based on the foregoing discussion, we affirm the trial court’s judgment.

      . The two breath samples constitute a single intoxilyzer test. Each intoxilyzer test requires two breath samples to ensure the accuracy of the reading.


text:
    Norris J. DEVOLL, Appellant, v. STATE of Texas, County of Bexar, Somerset Independent School District, and David De Los Santos, Appellees.
    No. 04-03-00920-CV.
    Court of Appeals of Texas, San Antonio.
    Nov. 24, 2004.

      Charles M. Jefferson, Law Office of Charles M. Jefferson, San Antonio, for appellant.
    Christina Tijerina, Mary Belan Doggett, Veronica D. Elizalde, Linebarger Goggan Blair & Sampson, L.L.P., Steven P. Price, Ederer & Price, L.L.C., San Antonio, for appellees.
    Sitting: CATHERINE STONE, Justice, KAREN ANGELINI, Justice, SANDEE BRYAN MARION, Justice.
   OPINION

Opinion by

CATHERINE STONE, Justice.

Norris Devoll appeals the denial of his petition for excess tax proceeds and the trial court’s issuance of a prefiling order prohibiting him from filing any future pro se lawsuits in this state. We affirm the trial court’s judgment to the extent that it awards $2,155.74 in excess proceeds to the State of Texas, County of Bexar, and Somerset Independent School District. We reverse the trial court’s judgment to the extent that it denies Devoll’s petition for excess proceeds and awards David De Los Santos $8,996.81. Lastly, we reverse the trial court’s judgment to the extent that it orders Devoll to seek permission of the local administrative judge before filing any future pro se lawsuit.

Factual Background

The State of Texas, County of Bexar, and Somerset Independent School District (the “Taxing Authorities”) filed suit against David De Los Santos for unpaid taxes. De Los Santos failed to answer the suit and a default judgment was entered against him. De Los Santos’s property was sold at a sheriffs sale and his unpaid taxes were paid from the proceeds of the sale. Excess proceeds in the amount of $11,152.55 were generated from the sale of the property.

Shortly after the property was sold, Norris Devoll contacted De Los Santos to acquire De Los Santos’s interest in the excess proceeds from the tax sale. De Los Santos agreed to convey his interest to Devoll; however, the assignment agreement executed by De Los Santos was invalid because it did not comply with the requirements of the Texas Tax Code. Following the attempted assignment, De Los Santos filed his own petition for excess proceeds.

Three months after De Los Santos filed his petition, De Los Santos again agreed to assign his claim to the excess tax proceeds to Devoll. Several weeks after De Los Santos assigned his rights to Devoll, the Taxing Authorities filed their own petition for excess proceeds. The Taxing Authorities claimed they were entitled to a portion of the excess proceeds because additional taxes had accrued on De Los Santos’s property between the time of the court’s judgment against him and the tax sale.

Devoll eventually filed his own petition for excess proceeds based on his assignment agreement with De Los Santos. After Devoll filed his petition, the Taxing Authorities discovered that the Honorable Pat Boone declared Devoll to be a vexatious litigant in another case recently filed by Devoll. According to the Taxing Authorities, Judge Boone declared Devoll a vexatious litigant in Devoll v. Moreno, Cause No.2001-CI-15139, pending in the 45th Judicial District Court, Bexar County, Texas shortly before Devoll filed the current litigation. Based on Judge Boone’s vexatious litigant finding in the Moreno case, the Taxing Authorities moved the trial court to declare Devoll a vexatious litigant and require Devoll to obtain permission from the local administrative judge before filing, pro se, any new litigation.

The trial court held a hearing on the parties’ petitions for excess proceeds and the Taxing Authorities’ vexatious litigant motion. At the hearing, neither Devoll nor De Los Santos disputed the Taxing Authorities’ right to $2,155.74 for unpaid property taxes. However, the parties did dispute the effect of Judge Boone’s earlier declaration that Devoll is a vexatious litigant. After hearing arguments on the issue, the trial court concluded Devoll should have obtained permission from the local administrative judge before filing his pro se petition for excess proceeds because Judge Boone had previously declared De-voll a vexatious litigant. The court further concluded that because Devoll is a vexatious litigant, Devoll should be prohibited from filing, pro se, any new litigation in a court in this state. The trial court denied Devoll’s petition for excess proceeds; awarded the Taxing Authorities $2,155.74 in excess proceeds; awarded De Los Santos $8,996.81 in excess proceeds; and entered a prefiling order requiring Devoll to seek permission from the local administrative judge before filing any future pro se lawsuit in this state. Devoll subsequently brought this appeal, claiming the trial court erred by: (1) finding he is a vexatious litigant and entering a prefiling order against him; and (2) denying his petition for excess proceeds and awarding De Los Santos $8,996.81.

Vexatious Litigants

Chapter Eleven of the Texas Civil Practice and Remedies Code provides a framework for courts and attorneys to curb vexatious litigation. Section 11.051 of the Civil Practice and Remedies Code allows a defendant to move the court for an order determining that the plaintiff is a vexatious litigant and requiring the plaintiff to furnish security. Tex. Civ. Prac. & Rem. Code Ann. § 11.051 (Vernon 2002). Once such a motion is filed, the trial court may find the plaintiff to be a vexatious litigant if the defendant demonstrates that there is not a reasonable probability that the plaintiff will prevail in the litigation against the defendant and that:

(1)the plaintiff, in the seven-year period immediately preceding the date the defendant makes the motion under Section 11.051, has commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims court that have been:
(A) finally determined adversely to the plaintiff;
(B) permitted to remain pending at least two years without having been brought to trial or hearing; or
(C) determined by a trial or appellate court to be frivolous or groundless under state or federal laws or rules of procedure;
(2) after a litigation has been finally determined against the plaintiff, the plaintiff repeatedly relitigates or attempts to relitigate, in propria persona, either:
(A) the validity of the determination against the same defendant as to whom the litigation was finally determined; or
(B) the cause of action, claim, controversy, or any of the issues of fact or law determined or concluded by the final determination against the same defendant as to whom the litigation was finally determined; or
(3) the plaintiff has previously been declared to be a vexatious litigant by a state or federal court in an action or proceeding based on the same or substantially similar facts, transition, or occurrence.

Id. § 11.054. A court shall order the plaintiff to furnish security for the benefit of the moving defendant if the court, after hearing the evidence on the motion, determines that the plaintiff is a vexatious litigant. Id. § 11.055(a). If the plaintiff ordered to furnish security does not furnish the security within the time set by the trial court, the court will dismiss the plaintiffs lawsuit. Id. § 11.056.

The vexatious litigant statute further allows a court to enter a prefiling order prohibiting a plaintiff from filing, pro se, any new lawsuit without leave of the local administrative judge. Section 11.101 provides:

(a) A court may, on its own motion or the motion of any party, enter an order prohibiting a person from filing, in pro-pria persona, a new litigation in a court in this state if the court finds, after notice and hearing as provided by Sub-chapter B, that:
(1) the person is'a vexatious litigant; and
(2) the local administrative judge of the court in which the person intends to file the litigation has not granted permission to the person under Section 11.102 to file the litigation.

Id. § 11.101(a). A local administrative judge may, however, grant permission to a person found to be a vexatious litigant under Section 11.101 to file a lawsuit if it appears that the lawsuit has merit and has not been filed for the purposes of harassment or delay. Id. § 11.102(a).

STANDARD OF REVIEW

We review issues concerning Chapter Eleven of the Texas Civil Practice and Remedies Code under an abuse of discretion standard. Nell Nations Forist v. Vanguard Underwriters Ins. Co., 141 S.W.3d 668, 670 (Tex.App.-San Antonio 2004, no pet.). The test for an abuse of discretion is not whether, in the opinion of the reviewing court, the fáets present an appropriate case for the trial court’s action, but “whether the court acted without reference to any guiding rules and principles.” Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). The trial court’s ruling should be reversed only if it was arbitrary or unreasonable. Id. at 242. “The mere fact that a trial judge may decide a matter within his discretionary authority in a different manner than an appellate judge in a similar circumstance does not demonstrate that an abuse of discretion has occurred.” Id.

Discussion

The first issue we are asked to decided is whether the trial' court erred by declaring Devoll a vexatious litigant and by entering a section 11.101 prefiling- order against Devoll. Before a court may enter a prefiling order, it must determine that the plaintiff is a vexatious litigant and the local administrative judge of the court in which the plaintiff intends to file suit has not granted permission to file the litigation. See Tex. Civ. Prac. & Rem.Code Ann. § 11.101(a). Here, the trial court found as follows:

Pursuant to Section 11.101, I will move — and if necessary I will move on my own motion pursuant to the statute that Mr. Norris Devoll has been found by Judge Boone to be a vexatious litigant and that as local administrative judge I have not granted him permission pursuant to Section 11.102 to file the current litigation. And in light of the fact that his conduct warrants protection of other people he may try to deal within the courts, I am going to order that he has to seek permission of the local administrative judge pursuant to 11.102 prior to filing any additional litigation.

With respect to the trial court’s finding that Devoll is a vexatious litigant, the trial court based its finding on Judge Boone’s vexatious litigant finding in the Moreno case. The record, however, reveals that no evidence was offered to establish that the Moreno case and the instant case are “based on the same or substantially similar facts, transition [sic], or occurrence,” as is required by section 11.054(3). See id. § 11.054(3) (indicating that a trial court may find the plaintiff to be a vexatious litigant if there is not a reasonable probability that the plaintiff will prevail in his lawsuit and the plaintiff has previously been declared to be a vexatious litigant by another court in a proceeding based on substantially similar facts). In the absence of any evidence establishing this statutory requirement, the trial court abused its discretion in relying on the Moreno order to declare Devoll to be a vexatious litigant in the instant case. Although section 11.054 provides two other alternative grounds for finding a litigant to be vexatious, the Taxing Authorities never attempted to plead or prove the applicability of the alternative grounds and the trial court did not base its ruling on these alternative grounds. Accordingly, we hold the trial court erred by finding Devoll is a vexatious litigant in the instant litigation.

The last issue we must decide is whether the trial court erred by denying Devoll’s petition for excess proceeds based on his failure to obtain permission from the local administrative judge before filing his petition. See id. § 11.102(a). After reviewing the record, it appears there is no evidence demonstrating that Devoll was required to obtain permission from the local administrative judge before filing his petition. The only evidence introduced at the hearing regarding Devoll’s status as a vexatious litigant concerns Judge Boone’s interlocutory order in Moreno. That order did not contain a prefiling requirement. Absent evidence indicating Devoll was required to seek permission from the local administrative judge before filing his petition for excess proceeds, we must hold the trial court erred by denying Devoll’s petition on this basis.

Conclusion

Based on the foregoing, the judgment of the trial court is affirmed as to the award of $2,155.74 in excess proceeds to the Taxing Authorities. The judgment of the trial court, however, is reversed as to the denial of Devoll’s petition for excess proceeds and the award of $8,996.81 in excess proceeds to De Los Santos. The cause is remanded to the trial court for further proceedings to determine the merits of Devoll’s and De Los Santos’s claims to the $8,996.81 in excess proceeds. The judgment of the trial court is further reversed to the extent it orders Devoll to seek permission of the local administrative judge before filing new pro se litigation in this state. It is therefore rendered that the trial court’s section 11.101 prefiling order has no effect on Devoll.

      . It is unclear whether this second assignment meets the requirements of the Tax Code.

      . Whether the trial court erred in awarding the Taxing Authorities $2,155.74 in excess proceeds is not an issue before this court because the Taxing Authorities' right to such proceeds has never been disputed.

      . See Tex. Civ. Prac. & Rem.Code Ann. § 11.051 et seq.

      . If the court decides to revisit the vexatious litigant issue on remand, we note that the vexatious litigant statute requires the court to order the plaintiff to furnish security for the benefit of the moving defendant before disposing of the plaintiff's lawsuit. See Tex. Civ. Prac. & Rem.Code Ann. §§ 11.055(a), 11.056.


author: RICHARD BARAJAS, Chief Justice.

text:
    TIERRA SOL JOINT VENTURE and Samuel & Company, Inc., Appellants, v. The CITY OF EL PASO, Appellee.
    No. 08-02-00511-CV.
    Court of Appeals of Texas, El Paso.
    Nov. 24, 2004.
    Rehearing Overruled Jan. 26, 2005.

      Robert A. Skipworth, El Paso, for appellants.
    Carmen I. Perez, Linebarger Heard Goggan Blair Graham Pena & Sampson, L.L.P., El Paso, for appellee.
    Before Panel No. 3: BARAJAS, C.J., LARSEN, and CHEW, JJ.
   OPINION

RICHARD BARAJAS, Chief Justice.

This is an appeal from a delinquent tax collection suit. For the reasons stated, we reverse and remand.

I. SUMMARY OF THE EVIDENCE

Appellee, the City of El Paso, filed suit against Appellants, Tierra Sol Joint Venture (the “Joint Venture”) and Samuel and Company, Inc., to collect taxes on two parcels of land identified as property # X214-999-000A-4530 (“#4530”) and property # X214-999-000A9625 (“# 9625”). During the trial, the City introduced certified tax statements for property # 4530 and # 9625. The statements reflected delinquent taxes for property #4530 for the years 1989 through 1995 and for property # 9625 for the years 1990 through 1995.

The Joint Venture was formed in 1981. The purpose of the Joint Venture was to acquire two parcels of properties that are the subject of this suit, # 4530 and # 9625. The Joint Venture was originally composed of James E. Branson, Jr., Walter G. Passero, William J. Morgan, John H. Fol-mer, and Victor Apodaca, Jr. Branson assigned 10 percent of his interest in the Joint Venture to APCO Investments shortly after the formation. Morgan and Apo-daca also sold their interest in the Joint Venture to Passero and Folmer. After these transactions, the Joint Venture consisted of Branson, Passero, Folmer, and APCO. In 1982, APCO transferred its interest in the Joint Venture to Robert C. Samuel. Samuel also acquired Passero’s and Folmer’s interests in the Joint Venture. These transactions resulted in the Joint Venture being composed of Branson and Samuel.

Branson and Samuel were involved in numerous lawsuits between each other. During the course of these lawsuits, Samuel gave sworn testimony that he considered himself a partner of the Joint Venture since 1982 when he first acquired an interest from APCO. Samuel testified that he was bound by the Joint Venture partnership agreement. Samuel also filed pleadings during the course of the lawsuits stating he was a member of the Joint Venture and asserting his rights as a partner under the Joint Venture agreement. From 1982 through 1996, Samuel admitted that he made statements, either personally or through his attorney, to banks, governmental agencies, and providers of various services that he was a partner or joint venturer, or owned a partnership or joint venture interest in the Joint Venture.

Branson also filed a sworn pleading asserting that Samuel became a member of the Joint Venture pursuant to an assignment of interest in June, 1982. However, Branson testified that he objected to the transfer of interest in the Joint Venture to Samuel and never agreed to admit him as a new party under the partnership agreement. Branson stated he never had any intention of allowing Samuel to become a partner and never entered into an agreement for sharing profits or losses. Bran-son controlled the books of the Joint Venture and did not allow Samuel access to the books. Branson stated that he and Samuel filed separate tax returns because they could not agree on how to file them. Branson and Samuel settled their differ-enees in 1996, and Branson assigned his interest in the Joint Venture to Appellant Samuel and Company, Inc.

During the trial, Branson denied that the Joint Venture received notices of delinquency. Samuel never alleged that he did not receive notices of delinquency, but alleged that he was not a partner in the Joint Venture during the years 1982 through 1995.

Vincent Kemendo, the Assistant Commercial of Industrial Property Manager for the Central Appraisal District, testified that the Appraisal District’s records listed Samuel as the owner of the properties for the years 1982 through 1995 because it relied on a document that recited a conveyance of the properties in question from APCO to Samuel. Kemendo testified that the Appraisal District relied on other records such as a Notice of Protest filed by Samuel’s agents. The protest was for both properties, #4530 and #9625, for the year 1989. The Appraisal District’s block book also contained handwritten notations changing the address for property # 4530 and property # 9625 from “3900 E. Camel-back Road in Phoenix, Arizona” to “5141 N. 40th Street, Suite No. 500, Phoenix, Arizona 85018.” Both accounts listed Samuel as the owner. The handwritten notations read, “per R.C. Samuel call in req.”

Juan Sandoval, the City Tax Assessor-Collector, testified that the name of the owner who appears on the tax roll is determined by the information the City Tax Office receives from the Appraisal District’s certified appraisal rolls. Based on the information on the certified tax rolls, Sandoval testified that the bills for both properties which had been sent to Samuel were not returned to the City. Sandoval stated accounts coded as “returned mail” were listed with two dollar signs (“$$”) on the certified tax rolls. The City used this symbol, $$, until the late 1980’s. Sandoval testified that neither property at issue was so coded. .

Appellants and Samuel filed a counterclaim against the City seeking affirmative relief pursuant to the Declaratory Judgment Act. The City filed Special Exceptions, which the trial court sustained. After a bench trial, the court entered judgment in favor of the City. The trial court, in substance, made the following findings of fact:

1. Tierra Sol Joint Venture owned the parcels identified as # 4530 and # 9625 on January 1st of tax years 1989 through 1995.
2. Robert C. Samuel was a partner in the Tierra Sol Joint Venture at all times during tax years 1982 through 1995.
3. Robert C. Samuel held himself out as a partner in the Tierra Sol Joint Venture since 1981.
4. The City of El Paso sent all tax bills and delinquent tax notices required by law for the property identified as # 4530 to Robert C. Samuel during tax years 1989 through 1995.
5. The City of El Paso sent all tax bills and delinquent tax notices required by law for the property identified as # 9625 to Robert C. Samuel during tax years 1990 through 1995.

The trial court, in substance, made the following conclusions of law:

1.- Receipt of the tax bills and delinquent tax notices covering the properties identified as # 4530 and # 9625 by Robert C. Samuel is imputed to the Tierra Sol Joint Venture.
2. Taxes, penalty, and interest in the amount described in the judgment of this Court are due and owing to the City of El Paso.

II. DISCUSSION

Appellants present three issues on appeal: (1) Was Robert C. Samuel a partner in Tierra Sol Joint Venture as early as 1982 so that notice to him of delinquent taxes would be notice to the joint venture?; (2) did the City of El Paso prove that it mailed the statutorily required delinquent tax notices to the owner?; and (3) did the trial court err in sustaining the City of El Paso’s special exceptions and thereby eliminate Tierra Sol Joint Venture’s counterclaim for affirmative relief?

A. Findings of Fact and Conclusions of Law

A trial court’s findings of fact in a bench trial have the same force and dignity as a jury verdict and we review sufficiency challenges to findings of fact by the same standards we apply in reviewing a jury’s findings. See Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996). In reviewing the trial court’s findings of fact for legal sufficiency of the evidence supporting them, we consider only the evidence favorable to the decision of the trier of fact and disregard all evidence and inferences to the contrary. Weirich v. Weirich, 833 S.W.2d 942, 945 (Tex.1992). If there is more than a scintilla of evidence to support the finding, the legal sufficiency point fails. Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex.1987); Worsham Steel Co. v. Arias, 831 S.W.2d 81, 83 (Tex.App.-El Paso 1992, no writ). When reviewing factual sufficiency points, we review all the evidence in the record, including any evidence contrary to the verdict. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex.1989). We will set aside the verdict only if the trial court’s finding is so against the great weight and preponderance of the evidence as to be manifestly unjust, shocking to the conscience, or clearly demonstrating bias. Pilkington v. Kornell, 822 S.W.2d 223, 230-31 (Tex.App.-Dallas 1991, writ denied). We will not substitute our judgment for that of the fact finder, even if we would have reached a different conclusion when reviewing the evidence. F.D.I.C. v. F & A Equip. Leasing, 854 S.W.2d 681, 684 (Tex.App.-Dallas 1993, no writ). A trial court’s conclusions of law are reviewed de novo as legal questions. Hitzelberger v. Samedan Oil Corp., 948 S.W.2d 497, 503 (Tex.App.-Waco 1997, writ denied). We will follow a trial court’s conclusions of law unless they are erroneous as a matter of law. Id. at 503.

1. The Existence of a Partnership

In Issue No. One, Appellants attack the legal and factual sufficiency of the trial court’s finding of fact number two, that Robert C. Samuel was a partner in the Tierra Sol Joint Venture at all times during tax years 1982 through 1995. Under the Texas Revised Partnership Act, a partnership is an association of two or more persons to carry on a business for profit as owners, whether the persons intend to create a partnership and whether the association is called a “partnership,” “joint venture,” or other name. Tex.Rev.Civ.Stat. AnN. art. 6132b-2.02(a)(Vernon Supp.2004-05). Appellants assert that a partnership consists of an express or implied agreement containing four required elements: (1) a community of interest in the venture; (2) an agreement to share profits; (3) an agreement to share losses; and (4) a mutual right of control or management of the enterprise. See Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 176 (Tex.1997), citing Coastal Plains Dev. Corp. v. Micrea, Inc., 572 S.W.2d 285, 287 (Tex.1978); see also Tex.Rev.Civ.Stat.Ann. art. 6132b-2.03.

It is undisputed that Samuel had an interest in the Joint Venture. However, there is no evidence of an agreement to share profits or losses, and there is no evidence of a mutual right of control or management of the enterprise. In fact, Branson testified that he objected to the transfer of interest in the Joint Venture to Samuel and never agreed to admit him as a new party under the partnership agreement. Branson stated he never had any intention of allowing Samuel to become a partner and never entered into an agreement for sharing profits or losses. Bran-son controlled the books of the Joint Venture and did not allow Samuel access to the books. Branson stated that he and Samuel filed separate tax returns because they could not agree on how to file them.

While the City produced evidence that Samuel held himself out to be a partner in the Joint Venture, both in sworn pleadings and deposition testimony in previous lawsuits, the Texas Supreme Court has held that if there is no evidence of any one element of a partnership, a finding of a partnership cannot be upheld. See Schlumberger, 959 S.W.2d at 176. Accordingly, we find there is legally insufficient evidence to support the trial courts finding of fact number two, that Samuel was a partner in the Joint Venture. Issue No. One is sustained.

2. Delinquent Tax Notices

In 1979, the Legislature passed Senate Bill number 621, which enacted the applicable provisions of the Tax Code. One of these provisions of the newly-enacted Tax Code was section 33.04, entitled “Notice of Delinquency,” which became effective January 1, 1982. Since its enactment, this section of the code was amended in 1981, 1985, 1999, and 2001. Following the 1985 amendments, section 33.04 read as follows:

(a) At least once each year the collector for a taxing unit shall deliver a notice of delinquency to each person whose name appears on the current delinquent tax roll. However, the notice need not be delivered if:
(1) a bill for the tax was not mailed pursuant to the authorization provided by Section 31.01(f) of this code; or
(2) the collector does not know and by exercising reasonable diligence cannot determine the delinquent taxpayer’s name and address.
(b) In addition to the notice required by Subsection (a) of this section, the tax collector for each taxing unit in each year divisible by five shall deliver by mail a written notice of delinquency to each person who owes a tax that has been delinquent more than one year and whose name and mailing address are known to the collector or can be determined by the exercise of reasonable diligence. He shall state in the notice the amount of the delinquent tax, penalties, and interest due, the description of the property on which the tax was imposed, and the year for which the tax is delinquent. If the person owes delinquent taxes for more than one year or on more, than one property, the collector may in-elude all the delinquent taxes the person owes in a single notice.
(c) Penalties and interest on a tax delinquent more than five years or a multiple of five years are cancelled and may not be collected if the collector has not delivered the notice required by Subsection (b) of this section in each year that is divisible by five following the date on which the tax first became delinquent for one year.

The 1985 amendments became effective August 26, 1985, and applied to notices required by subsections (a) and (b) to be given in 1985. Section 33.04 was not amended again until 1999. The 1999 amendment became effective January 1, 2000 and applied only to 33.04(b) notices given in and after 2000. Thus, section 33.04 notices required to be given by the City for the properties at issue were governed by the 1985 version of section 33.04 because the certified tax statements reflected delinquent taxes for property #4530 for the years 1989 through 1995 and for property # 9625 for the years 1990 through 1995. To reiterate, as stated by subsection 33.04(c), failure by the City to give the required 33.04(b) notices mandated cancellation of penalties and interest on the taxes owed.

It is undisputed that delinquent tax notices were sent to Samuel. Juan Sandoval, the City Tax Assessor-Collector, testified that the bills for both properties which had been sent to Samuel were not returned to the City. The City introduced no evidence that the property owner, Tierra Sol Joint Venture, as found by the court in finding of fact number one, received such notices. Branson testified that the Joint Venture never received any tax deficiency notices after 1982. Given our disposition of Issue No. One, the trial courts conclusion of law number one, that receipt of the tax bills and delinquent tax notices covering the properties identified as # 4530 and # 9625 by Robert C. Samuel is imputed to the Tierra Sol Joint Venture, is erroneous as a matter of law. Likewise, findings of fact number one, number four, and number five are inconsistent. There is no evidence that the property owner, Tierra Sol Joint Venture, received the delinquent tax notices. Issue No. Two is sustained and as such, failure by the City to give the required 33.04(b) notices mandates cancellation of penalties and interest on the taxes owed.

B. Counterclaim

In Issue No. Three, Appellants argue that the trial court erred in sustaining the City’s special exceptions and thereby eliminated Appellants’ counterclaim for affirmative relief. Appellants filed a counterclaim against the City seeking to have' the moneys paid for years 1982 through 1995 applied only to the taxes owed rather than to the penalties and interest. Appellants argue that this was the' only mechanism available which would require the City to “disgorge the money it had paid itself for penalties and interest” for the years in dispute and apply those moneys solely to the principal. Given our disposition of Issue No.’ Two, we find that the trial court erred in sustaining the City’s special exceptions, thereby dismissing Appellants’ counterclaim. Because the Court has determined there is no evidence that the Joint Venture received the delinquent tax notices and that the City is not entitled to penalties and interest on the taxes owed for the years 1989-1995 for #4530 and 1990-1995 for # 9625, Issue No. Three is sustained.

The portion of the judgment awarding penalties and interest is reversed. We remand to the trial court for proceedings not inconsistent with this opinion.

      . Act of May 24, 1979, 66th Leg., R.S., ch. 841, § 1, 1979 Tex.Gen.Laws 2217.

      . Id. at § 33.04.

      . Act of May 24, 1979, 66th Leg., R.S., ch. 841, § 33.04, 1979 Tex.Gen.Laws 2217, 2290-91, amended by Act of August 10, 1981, 67th Leg., 1st C.S., ch. 13, § 128, sec. 33.04(c), 1981 Tex.Gen.Laws 117, 168, amended by Act of May 26, 1985, 69th Leg., R.S., ch. 761, § 1, sec. 33.04, 1985 Tex.Gen.Laws 2600, 2601, amended by Act of May 30, 1999, 76th Leg., R.S., ch. 1481, § 16, sec. 33.04, 1999 Tex.Gen. Laws 5097, 5101, amended by Act of May 15, 2001, 77th Leg., R.S., ch. 1430, § 11, sec. 33.04, 2001 Tex.Gen.Laws 5109, 5112.

      . Act of May 26, 1985, 69th Leg., R.S., ch. 761, § 1, sec. 33.04, 1985 Tex.Gen.Laws 2600, 2601.

      . Id. at § 2.

      . Act of May 30, 1999, 76th Leg., R.S., ch. 1481, § 16, sec. 33.04, 1999 TexGen.Laws 5097, 5101.

      . Act of May 30, 1999, 76th Leg., R.S., ch. 1481, § 43(c), 1999 Tex.Gen.Laws 5097, 5114.

      . Act of May 30, 1999, 76th Leg., R.S., ch. 1481, § 45, 1999 Tex.Gen.Laws 5097, 5114.

      . Act of May 26, 1985, 69th Leg., R.S., ch. 761, § 1, sec. 33.04, 1985 TexGen.Laws 2600, 2601.

      .In findings of fact number one, number four, and number five, the court found Tierra Sol Joint Venture owned the parcels identified as # 4530 and # 9625 on January 1st of tax years 1989 through 1995; the City of El Paso sent all tax bills and delinquent tax notices required by law for the property identified as # 4530 to Robert C. Samuel during tax years 1989 through 1995; and the City of El Paso sent all tax bills and delinquent tax notices required by law for the property identified as # 9625 to Robert C. Samuel during tax years 1989 through 1995.