author: ADOLPHO A. BIRCH, JR., J„

text:
    STATE of Tennessee v. Kimberly Jeannine COX.
    Supreme Court of Tennessee, at Nashville.
    Feb. 3, 2005 Session.
    Aug. 26, 2005.

      Roger E. Nell, District Public Defender (on appeal), and Russel A. Church, Assistant Public Defender (at trial and on appeal), Clarksville, Tennessee, for the appellant, Kimberly Jeannine Cox.
    Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Richard H. Dunavant, Assistant Attorney General; John Carney, District Attorney General; and Arthur Bieber, Assistant District Attorney General, for the Appellee, State of Tennessee.
   OPINION

ADOLPHO A. BIRCH, JR., J„

delivered the opinion of the court,

in which FRANK F. DROWOTA, III, C.J., and E. RILEY ANDERSON, JANICE M. HOLDER, and WILLIAM M. BARKER, JJ., joined.

We accepted review of this cause under the Tennessee Rules of Appellate Procedure, Rule 11, in order to address a question properly preserved and certified pursuant to the provisions of the Tennessee Rules of Criminal Procedure, Rule 37(b)(2)(i). The question, as certified, is: Whether the consent given to search the defendant’s motel room is consistent with the requirements of the United States Constitution and the Constitution of the State of Tennessee?

Because we hold that during the course of a lawful traffic stop the defendant voluntarily consented to a search of her motel room, we find the trial court was correct in denying the motion to suppress the evidence obtained as a result of that search. Accordingly, we affirm the judgment of the Court of Criminal Appeals.

I. Pacts and Procedural History

On the morning of February 3, 2002, at approximately 12:15 a.m., Officer David Randall Odell, a drug enforcement agent attached to the Major Crimes Unit of the Clarksville Police Department, observed the defendant, Kimberly Cox, driving out of an exit near a business that had been burglarized several times recently. He followed the defendant in his unmarked vehicle until she entered the left turn lane. Thereafter, she failed to activate her left-turn signal before turning into a mobile home park. At this point, he activated his emergency equipment and pulled her over.

Upon approaching Cox’s vehicle, Odell asked the defendant for her driver’s license; she complied. Odell informed her he was going to check the validity of her license and determine whether she had any outstanding warrants. He stated that if she did not have any outstanding warrants, he intended to issue a verbal warning and let her go. Approximately five minutes later, Odell had determined that her license was valid and no warrants were outstanding against her. However, upon checking her license plate, Odell discovered that it was registered to a different vehicle. Odell called for back-up and asked the defendant to step out of the car.

When Odell asked the defendant about the discrepancy, she told him that she had borrowed the vehicle from a friend. At this time, three officers arrived in response to Odell’s request for back-up. He then transmitted the vehicle identification number to his dispatcher to determine whether the vehicle had been stolen. While waiting for the results, Odell asked the defendant for permission to search both her person and the vehicle. She consented to both searches, which took about ten minutes. Odell discovered a seed and flake of marijuana on the driver’s side floorboard; this evidence was not field testable.

After finding the marijuana, Odell asked the defendant where she was going. She stated that she lived in a trailer at the mobile home park, and was going there to retrieve her mobile phone charger. She further explained that she and her boyfriend were staying at the Travel Inn because there were several people in her trailer. Odell then asked for permission to search her room at the Travel Inn, which was located about a quarter of a mile away. The defendant assented and gave Odell the number of the room where she and her boyfriend were staying. Odell returned the defendant’s license, and then he and another officer followed the defendant to the Travel Inn. At this time, about twenty to twenty-five minutes had elapsed since the initial stop. As they entered the motel parking lot, Odell was told by the dispatcher that nothing indicated the defendant’s vehicle had been stolen.

Upon arrival at the defendant’s motel room, the defendant unlocked the door. Odell identified himself to John David Scott, a man present in the room, and explained why he was there. Scott immediately told Odell that he had a marijuana cigar and handed it to the officer. Odell asked Scott if he could search his person; Scott assented. Odell then asked if there were any weapons or other drugs in the room. Both the defendant and Scott replied in the negative.

Odell advised the defendant and Scott of their Miranda rights and told them that he was going to continue to search the motel room. While searching the room, Odell found a small tube in a night stand, which contained approximately eight pieces of what appeared to be crack cocaine. He then arrested both the defendant and Scott. The laboratory tests ultimately confirmed Odell’s suspicions regarding the evidence he found. The defendant and Scott were each indicted for simple possession of marijuana, Tennessee Code Annotated section 39-17-418, possession of more than .5 grams of cocaine with intent to sell, Tennessee Code Annotated section 39-17-417, and possession of more than .5 grams of cocaine with intent to deliver, Tennessee Code Annotated section 39-17-417.

The defendant filed a motion to suppress the evidence obtained during the search of the motel room. After hearing testimony and argument, the trial court overruled the motion. In finding the consent to search the motel room voluntary, the trial court stated:

Now the testimony was very, very clear from the officer that she agreed to the search of the motel room back at the initial stop. Basically, sure go ahead. And she wasn’t detained from that point. She got into this other car and went with — drove the car to the motel and, basically, opened the door for the officer and said come on in and you can search, as she had already said.
So, I think it’s was [sic] very important that she was not being detained there to go search the motel room. She agreed to it. And, again, that’s what the law is in this state is whether she agrees to it voluntarily, and she certainly did.
And, again, if she had said no to that, that would have been the end of that. There wasn’t any reasonable suspicion, any activity either for the car or for the motel room. But when you consent you take that out of the ... consideration for the Court.
I think under all the circumstances her consent was voluntary; it was intelligently made.

Thereafter, the defendant entered a plea of guilty to one count of possession of cocaine greater than .5 grams, and the trial court sentenced her to a term of eight years, all suspended, to run concurrently with a prior sentence. The remaining charges were dismissed.

In keeping with the agreement, the defendant reserved a certified question for appeal pursuant to Rule 37(b)(2)(i) of the Tennessee Rules of Criminal Procedure. The reserved question is: whether the consent given to search the defendant’s motel room is consistent with the requirements of the United States Constitution and the Constitution of Tennessee. Within that reserved question the defendant states that there are four issues: (1) whether the trial court was correct that the consent was voluntarily given as that requirement exists under both constitutions; (2) whether the police have any requirement to discuss the voluntariness of consent — specifically the right to refuse; (3) whether there are any limitations on the ability of the police to seek a consent search under circumstances where any other exception to the search requirement does not exist; and (4) under the facts of this case, whether the request to search a motel room at another location as a result of a traffic stop that resulted in the issuance of no charges or citations, was a violation of the defendant’s constitutional rights.

On direct appeal, the Court of Criminal Appeals affirmed the trial court’s judgment. Now, we consider the same question pursuant to Rule 11 of the Tennessee Rules of Appellate Procedure. Although the four supplemental questions are posited as discrete issues, the determinative issue is the constitutional validity of the defendant’s consent to the search of her motel room. The other questions are tangential and subordinate to this issue, and resolution of the determinative issue will, in turn, resolve the certified question.

II. Standard of Review

Our standard of review for a trial court’s findings of fact and conclusions of law on a motion to suppress evidence is set forth in State v. Odom, 928 S.W.2d 18 (Tenn.1996). Under this standard, “a trial court’s findings of fact in a suppression hearing will be upheld unless the evidence preponderates otherwise.” Id. at 23. As is customary, “[t]he prevailing party in the trial court is afforded the ‘strongest legitimate view of the evidence and all reasonable and legitimate inferences that may be drawn from that evidence.’ ” State v. Carter, 16 S.W.3d 762, 765 (Tenn.2000) (quoting State v. Keith, 978 S.W.2d 861, 864 (Tenn.1998)). Nevertheless, this Court reviews de novo the trial court’s application of the law to the facts, without according any presumption of correctness to those conclusions. See State v. Walton, 41 S.W.3d 75, 81 (Tenn.2001); State v. Crutcher, 989 S.W.2d 295, 299 (Tenn.1999).

III. Analysis

A. Search and Seizure

The Fourth Amendment to the United States Constitution guarantees that “the right of the people to be secure ... against unreasonable searches and seizures, shall not be violated and no warrants shall issue, but upon probable cause....” Similarly, Article I, section 7 of our Tennessee Constitution guarantees “that the people shall be secure in their persons, houses, papers, and possessions, from unreasonable searches and seizures .... ” The purpose of these constitutional provisions protecting the citizenry from unreasonable searches and seizures is to “safeguard the privacy and security of individuals against arbitrary invasions of government officials.” State v. Randolph, 74 S.W.3d 330, 334 (Tenn.2002) (quoting Camara v. Mun. Ct. of San Francisco, 387 U.S. 523, 528, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967)).

Accordingly, under both the federal constitution and our state constitution, a search without a warrant is presumptively unreasonable, and any evidence obtained pursuant to such a search is subject to suppression unless the state demonstrates that the search was conducted under one of the narrowly defined exceptions to the warrant requirement. State v. Garcia, 123 S.W.3d 335, 343 (Tenn.2003) (citing State v. Yeargan, 958 S.W.2d 626, 629 (Tenn.1997) and Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971)); see also Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); State v. Bartram, 925 S.W.2d 227, 229-230 (Tenn.1996). Moreover, Tennessee has approved of and adopted exceptions to the requirement of obtaining a valid search warrant, including search incident to arrest, plain view, stop and frisk, hot pursuit, search under exigent circumstances, and others. Bartram, 925 S.W.2d 227, 230 & n. 2. Well settled among the exceptions to the warrant requirement, and the one with which we are engaged here, is consent to search. See id. at 230.

B. Consent to Search

1. Scope of the Stop

First, the defendant contends that the scope of the officer’s actions during the stop exceeded constitutional parameters. Specifically, it is settled law that “the temporary detention of individuals during the stop of a vehicle by police, even if only for a brief period and for a limited purpose, constitutes a ‘seizure’ which implicates the protection of both the state and federal constitutional provisions.” State v. Vineyard, 958 S.W.2d 730, 734 (Tenn.1997) (citing Whren v. United States, 517 U.S. 806, 809-10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996), Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), and State v. Pulley, 863 S.W.2d 29, 30 (Tenn.1993)). As a general rule under both the state and federal constitutions, if the police have probable cause to believe that a traffic violation has occurred, such stops are considered constitutionally reasonable. Whren, 517 U.S. at 810, 116 S.Ct. 1769; Vineyard, 958 S.W.2d at 734. The duration of such a stop, however, must be “temporary and last no longer than necessary to effectuate the purpose of the stop.” State v. Troxell, 78 S.W.3d 866, 871 (Tenn.2002) (quoting Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983)); see also Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (holding that an officer’s actions in an investigative stop must be “reasonably related in scope to the circumstances which justified the interference in the first place”). “The proper inquiry is whether during the detention the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly.” Troxell, 78 S.W.3d at 871; see United States v. Sharpe, 470 U.S. 675, 686, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985). A traffic stop may be deemed “unreasonable,” if the “ ‘time, manner or scope of the investigation exceeds the proper parameters.’” Troxell, 78 S.W.3d at 871 (quoting United States v. Childs, 256 F.3d 559, 564 (7th Cir.2001) and citing State v. Morelock, 851 S.W.2d 838, 840 (Tenn.Crim.App.1992)).

In this case, Odell stopped the defendant for a traffic infraction. He asked for her driver’s license for the purpose of confirming its validity. Such conduct is clearly permissible within the scope of a traffic stop under Tennessee law. Tenn.Code Ann. § 55-50-804; State v. McCulloch, 906 S.W.2d 3, 5 (Tenn.Crim.App.1995). Although Odell determined that the driver’s license was valid, he also learned that the license plate on the vehicle was registered to a different vehicle. It was not unreasonable for Odell to retain the defendant’s driver’s license as he continued to confirm that the vehicle the defendant was driving was legitimately in her possession. The detention, under the circumstances, was no longer than was necessary. The process of checking the validity of the driver’s license, checking for outstanding warrants, and then checking the vehicle identification number to ensure the vehicle was not stolen, lasted approximately fifteen minutes. During this entire period of time, Odell continued to diligently pursue the investigation in a manner designed to confirm or dispel suspicion quickly. See Troxell, 78 S.W.3d at 871. We conclude that the scope of the investigative detention was reasonable. Accordingly, the defendant’s contention that her consent was obtained as a result of an unlawful detention is without merit.

2. Reasonable Suspicion Requirement to Seek Consent

The defendant also urges this Court to attach to consent searches a requirement limiting law enforcement personnel to requesting the consent to search only in instances where, at a minimum, the officer has a reasonable suspicion, supported by specific and articulable facts, that contraband or other evidence of a crime will be found during the course of the search. She cites to our decision in State v. Daniel, 12 S.W.3d 420 (Tenn.2000), in which we limited the discretion of law enforcement officers to “seize” a citizen without reasonable suspicion by asking for and then retaining the citizen’s driver’s license in order to run a warrants check.

The defendant in Daniel was standing with friends in the parking lot of a Knox County convenience store at dusk on a summer night. Id. at 423. The men were approached by a police officer who asked to see identification. Id. The State conceded that the officer had no reasonable suspicion to believe that a crime had been, or was about to be, committed. Id. at 428. The officer took the defendant’s driver’s license and retained it for some period of time while running a warrants check on the men. Id. at 423. As it turned out, there was an outstanding warrant on the defendant. Id. He was arrested and incident to that arrest, when the officer asked the defendant if he had anything sharp in his pockets, he revealed that he had a bag of marijuana. Id. The defendant was then charged with possession of the marijuana.

We pointed out in Daniel that there are three types of police-citizen interactions: full scale arrests, which require probable cause; brief investigatory detentions, which require reasonable suspicion of wrongdoing; and the brief police-citizen encounters, which require no objective justification. Id. at 424 (citations omitted). In Daniel, we found that what began as a brief encounter ripened into a detention when the defendant’s license was retained to run a records check. Because such detentions require reasonable suspicion, and because the officer in that case had none, we held that the detention was illegal and that the marijuana, as the fruit of that detention, should have been suppressed. Id. at 428 (citing Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)).

The facts in this case are distinguishable from Daniel. First, Odell clearly had probable cause to stop the defendant for her traffic infraction. Second, although he determined not to cite her for that infraction, the detention was thereafter justified by the discrepancy in the status of the vehicle license registration. Accordingly, the consent to search the car and consent to search the motel room were not “fruit of the poisonous tree” as in Daniel.

The defendant also cites to a New Jersey case, State v. Carty, 170 N.J. 632, 790 A.2d 903 (2002), in which the Supreme Court of New Jersey held that consent to search following the lawful stop of a motor vehicle would not be deemed valid unless there was a reasonable and articulable suspicion that the motorist or passenger has engaged in, or is about to engage in, criminal activity. Id. at 912. As far as we have been able to discern from our extensive research on this issue, only one other state, New York, has imposed such a requirement on consent searches. See People v. Hollman, 79 N.Y.2d 181, 581 N.Y.S.2d 619, 590 N.E.2d 204 (1992). We do not believe that such a requirement is necessary. As previously noted, we find that the “totality of the circumstances” test for determining voluntariness of consent adequately safeguards the constitutional protections provided by Article I, section 7 of our own constitution as well. Accordingly, we decline to impose any additional requirements for consent searches.

Furthermore, we note the defendant’s contention that the initial traffic stop was pretextual and unsupported by probable cause or reasonable suspicion. As the state points out, however, the defendant did not include the issue of the validity of the initial traffic stop within the certified question. Accordingly, the question not having been reserved under Rule 37(b)(2)(i), Rules of Criminal Procedure, we do not address it here. State v. Preston, 759 S.W.2d 647, 650 (Tenn.1988).

3. Knowledge of the Right to Refuse Consent

Finally, the defendant urges that consent cannot be “intelligently given” unless a subject is expressly informed that he or she has the right to refuse consent. “ “Voluntary consent requires sufficient intelligence to appreciate the act as well as the consequence of the act agreed to.’” Thurman v. State, 2 Tenn.Crim.App. 479, 455 S.W.2d 177, 180 (1970) (quoting 79 C.J.S. Searches and Seizures § 62(b)).

Indeed, the United States Supreme Court has expressly held that an individual need not be informed of his or her right to refuse consent as a prerequisite of valid consent. United States v. Drayton, 536 U.S. 194, 206, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002); Schneckloth v. Bustamonte, 412 U.S. 218, 231, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The facts in Schneck-loth were similar to those in this case. The defendant, Robert Bustamonte, was one of five passengers in a vehicle that was stopped by police for various minor traffic infractions. Schneckloth, 412 U.S. at 220, 93 S.Ct. 2041. Neither the driver nor four of the passengers could produce any identification. Id. Joe Alcala, the one passenger who did have identification, told police that the car belonged to his brother. Id. Police then asked Alcala for permission to search the car, and Alcala agreed. Id. Three stolen checks were discovered under the rear passenger seat of the car. Id.

On appeal, the Court of Appeals for the Ninth Circuit held that the state must demonstrate that a person knew and understood that their consent could have been withheld. Id. at 221, 93 S.Ct. 2041. The Schneckloth court expressly rejected this reasoning, refusing to impose upon the State the burden of showing that there had been an intentional relinquishment of a known constitutional right. Id. at 249, 93 S.Ct. 2041. Instead, the court simply reiterated that the question of consent was to be analyzed under the “voluntariness” standard and determined from a consideration of the totality of the circumstances. Id. at 235-247, 93 S.Ct. 2041; see also Drayton, 536 U.S. at 206, 122 S.Ct. 2105. The intermediate court of this state has consistently rejected the notion that a suspect must be expressly informed of the right to refuse consent and, as indicated, this Court has denied permission to appeal. See State v. Vaughan, 144 S.W.3d 391, 403 (Tenn.Crim.App.2003); State v. Cothran, 115 S.W.3d 513, 522 (Tenn.Crim. App.2003), perm. app. denied (Tenn.2003). Likewise, the majority of states have rejected this argument as well. See State v. Smith, 123 Ariz. 231, 599 P.2d 187, 197 (1979); People v. Helm, 633 P.2d 1071, 1076-77 (Colo.1981); State v. Tye, 276 Ga. 559, 580 S.E.2d 528, 530 (2003); State v. Reinders, 690 N.W.2d 78, 82 (Iowa 2004); State v. Berry, 526 S.W.2d 92, 98 (Mo.Ct. App.1975); State v. Osborne, 119 N.H. 427, 402 A.2d 493, 498 (1979); State v. Robinette, 80 Ohio St.3d 234, 685 N.E.2d 762, 769 (1997); State v. Flores, 280 Or. 273, 570 P.2d 965, 969-70 (1977); Commonwealth v. Cleckley, 558 Pa. 517, 738 A.2d 427, 432-33 (1999); State v. Castleberry, 686 N.W.2d 384, 387 (S.D.2004); In re D.G., 96 S.W.3d 465, 468-69 (Tex.App. 2002); State v. Cowtrel, 886 P.2d 107, 111-12 (Utah Ct.App.1994); Barkley v. Commonwealth, 39 Va.App. 682, 576 S.E.2d 234, 241 (2003); State v. McCrorey, 70 Wash.App. 103, 851 P.2d 1234, 1239 (1993), overruled on other grounds; State v. Buzzard, 194 W.Va. 544, 461 S.E.2d 50, 57 (1995); State v. Williams, 255 Wis.2d 1, 646 N.W.2d 834, 840 n. 7 (2002).

We acknowledge, however, that Schneckloth and its progeny have been rejected as ruling precedent in a handful of jurisdictions. See Graves v. State, 708 So.2d 858, 863-64 (Miss.1997); State v. Carty, 170 N.J. 632, 790 A.2d 903, 907 (2002) (holding that suspects must be advised of their right to refuse consent to search); see generally State v. Trainor, 83 Hawai’i 250, 925 P.2d 818, 826-831 (1996). The rationale for this rejection has several common threads:

1) Many persons would view a request from police to conduct a search as having the force of law;
2) Unless it is shown that the subject knew of the right to refuse to consent to the search, the consent given is not meaningful; and,
3) One cannot be held to have waived a right if unaware of its existence.

The distinction between the Schneckloth analysis of voluntariness and the minority view is at once apparent. Schneckloth requires that consent be analyzed within the totality of the circumstances surrounding the giving of that consent. Under this analysis, whether the subject knew of the right to refuse consent is but one factor to be considered. In contrast, those who reject Schneckloth urge a per se rule based upon a “waiver” analysis. Under this analysis, failure on the part of the state to demonstrate a subject’s awareness of a choice in the matter (i.e., the right to refuse) is key. As a result of failure to demonstrate this knowledge, the consent would be deemed unconstitutional regardless of the other attendant circumstances.

We are free to interpret the provisions of our state constitution to afford greater protection than the federal constitution. Indeed, in the search and seizure arena, we acknowledge that on occasion this Court has applied a common sense “reasonableness” standard that tends to provide greater protection for the constitutional rights of citizens than the baseline level of protection guaranteed by the federal constitution. See, e.g., State v. Randolph, 74 S.W.3d 330, 337 (Tenn.2002) (applying a “totality of the circumstances” test to determine when a “seizure” occurs, a broader test than that applied by the federal courts); State v. Hicks, 55 S.W.3d 515, 538-39 (Tenn.2001) (holding that driver’s license roadblocks are unconstitutional under Tennessee Constitution Article I, section 7); State v. Jacumin, 778 S.W.2d 430, 436 (Tenn.1989) (adopting a stricter test for ascertaining probable cause for informant-based warrants).

In the case of consent searches, however, we believe the totality of the circumstances test adequately balances the government’s interest in pursuing criminal investigations against the citizen’s right to be free from unreasonable searches and seizures. The very nature of a consent search differs from the other exceptions to the warrant requirement; a subject approached regarding a consent search is presumed free to decline the request. Thus, the defendant may adduce proof tending to show that he or she was not “free” to decline the request to search.

Schneckloth remains the majority rule despite the occasional efforts to scuttle it. Accordingly, we decline to impose a requirement that the subject be informed of the right to refuse consent. Instead, we continue to adhere to the Schneckloth totality of the circumstances criteria, which may specifically include a subject’s knowledge of the right to refuse consent. Therefore, we decline to adopt a per se rule or a waiver analysis in these circumstances.

4. Totality of the Circumstances

The issue of consent under the United States Constitution, is analyzed under the standard set forth in Schneckloth:

[T]he Fourth and Fourteenth Amendments [to the United States Constitution] require that a consent not be coerced by explicit or implicit means, by implied threat or covert force. For, no matter how subtly the coercion was applied, the resulting ‘consent’ would be no more than a pretext for the unjustified police intrusion against which the Fourth Amendment is directed.

412 U.S. at 228, 98 S.Ct. 2041. Furthermore, while “[t]he Fourth Amendment proscribes unreasonable searches and seizures, it does not proscribe voluntary cooperation.” Florida v. Bostick, 501 U.S. 429, 439, 111 S.Ct. 2882, 115 L.Ed.2d 389 (1991); Schneckloth v. Bustamonte, 412 U.S. 218, 243, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (holding that “there is nothing constitutionally suspect in a person[ ] voluntarily allowing a search”). We believe the same is true under Article I, section 7 of our own constitution. See Bartram, 925 S.W.2d at 229-30.

Thus, “the question whether a consent to a search was in fact ‘voluntary’ or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances.” Schneckloth, 412 U.S. at 227, 93 S.Ct. 2041. To clarify its rationale, the Court in Schneckloth explains:

The problem of reconciling the recognized legitimacy of consent searches with the requirement that they be free from any aspect of official coercion cannot be resolved by any infallible touchstone. To approve such searches without the most careful scrutiny would sanction the possibility of official coercion; to place artificial restrictions upon such searches would jeopardize their basic validity.... [T]he requirement of a ‘voluntary’ consent reflects a fair accommodation of the constitutional requirements involved. In examining all the surrounding circumstances to determine if in fact the consent to search was coerced, account must be taken of subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents.... In sum, there is no reason for us to depart in the area of consent searches, from the traditional definition of ‘voluntariness.’

Id. at 229, 93 S.Ct. 2041.

Likewise, consent is similarly analyzed under Tennessee law. For consent to pass “constitutional muster,” it must be “unequivocal, specific, intelligently given, and uncontaminated by duress or coercion.” State v. Simpson, 968 S.W.2d 776, 784 (Tenn.1998) (quoting State v. Brown, 836 S.W.2d 530, 547 (Tenn.1992)). Like the Schneckloth court, the Court of Criminal Appeals has held that “[t]he existence of consent and whether it was voluntarily given are questions of fact” which require examining the totality of the circumstances. State v. Ashworth, 3 S.W.3d 25, 29 (Tenn.Crim.App.1999) (quoting State v. McMahan, 650 S.W.2d 383, 386 (Tenn.Crim.App.1983) and citing Schneckloth, 412 U.S. at 248-49, 93 S.Ct. 2041); see also State v. McCrary, 45 S.W.3d 36, 43 (Tenn.Crim.App.2000); State v. Jackson, 889 S.W.2d 219, 221 (Tenn.Crim.App.1993). Accordingly, we analyze the voluntariness of consent in this case under the totality of the circumstances criteria.

The question of whether a particular consent to search was “voluntary” is fact-specific to each case. The United States Supreme Court has consistently rejected a “bright-line test.” Ohio v. Robinette, 519 U.S. 33, 39, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996); Schneckloth, 412 U.S. at 229-30, 93 S.Ct. 2041. The pertinent question is this: whether the defendant’s act of consenting is the product of an essentially free and unconstrained choice. If the defendant’s will was overborne and his or her capacity for self-determination critically impaired, due process is offended. Schneckloth, 412 U.S. at 225-26, 93 S.Ct. 2041 (citing Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961)).

In evaluating the voluntariness of consent, factors to consider may include:

1. Time and place of the encounter;
2. Whether the encounter was in a public or secluded place;
3. The number of officers present;
4. The degree of hostility;
5. Whether weapons were displayed;
6. Whether consent was requested; and
7.Whether the consenter initiated contact with the police.

79 C.J.S. Searches and Seizures § 119(b) (1995 & Supp.2004); see also State v. Carter, 16 S.W.3d 762, 769 (Tenn.2000). Moreover, consideration may be given to certain personal characteristics of the individual giving consent. These include: “age, education, intelligence, knowledge, maturity, sophistication, experience, prior contact with law enforcement personnel, and prior cooperation or refusal to cooperate with law enforcement personnel.” Id. Knowledge of the right to refuse consent has also been included as a factor. Schneckloth, 412 U.S. at 235-47, 93 S.Ct. 2041

Using the factors applicable to the present case, we begin examining the totality of the circumstances by first considering the defendant’s personal characteristics. The defendant was twenty years of age at the time of the encounter. The record suggests that the defendant is of average intelligence. Furthermore, there does not appear to be any problem with the defendant’s maturity or sophistication. The record includes a previous experience with law enforcement; according to the defendant’s testimony at the suppression hearing, she had previously been through a similar investigatory stop and search of her vehicle. Additionally, she had been incarcerated on a felony conviction and was still on probation at the time of this stop. This fact evinces a presumptive familiarity with the criminal justice system.

Next, the evaluation of the totality of circumstances turns to the details of the encounter. Since the encounter began at approximately 12:15 a.m., it appears from the record that the area where this incident occurred was virtually deserted. The defendant was turning into her mobile home park and was in familiar surroundings. Furthermore, the verbal exchanges between Odell and the defendant suggested a casual conversation. However, underlying that “friendly” attitude on Odell’s part, there appeared to be a persistent yet subtle predetermination to exploit the defendant’s apparent pleasantness and/or naivete. Additionally, the evidence indicates that Odell’s specific job assignment was drug interdiction. This fact permits the inference that his focus was just that— drug interdiction.

Still, the evidence is that Odell remained polite and respectful throughout the encounter. Three other officers arrived on the scene after discovery of the license plate irregularity, but nothing in their conduct or in Odell’s, for that matter, suggested pressure or coercion. Additionally, nothing in the record suggests that Odell drew his weapon at any point. Furthermore, after the defendant agreed to a search of the motel room, Odell returned her driver’s license and permitted her to drive her own vehicle to the motel. In theory, had she entertained second thoughts about permitting the search, she had every opportunity to change her mind and revoke her consent upon arrival at the motel. She did not do so.

Considering the totality of the circumstances, we are constrained to conclude that the defendant’s consent was not obtained through coercion or intimidation. Rather, the record is remarkable in that the defendant appears to have eagerly cooperated with Odell, as evidenced by her words and conduct. Thus, the defendant’s consent was voluntary.

IV. Conclusion

We conclude that under the facts of this case, the defendant was lawfully detained for a traffic infraction that was lawfully extended as police attempted to resolve a discrepancy in the vehicle license registration. During this lawful detention, the defendant freely, intelligently, and voluntarily gave police consent — first to search the car she was driving and then her motel room. Thus, we conclude that the evidence found in the motel room was lawfully seized. We have concluded that the search conducted in this case has withstood constitutional scrutiny. We do not intend to give blanket approval to “off-site” searches such as we have here and will continue to scrutinize such searches. Thus, we expressly limit our holding to the facts of this case. We affirm the judgment of the Court of Criminal Appeals holding that consent was voluntarily obtained, and was, therefore, valid. It appearing that Kimberly Jeannine Cox is indigent, costs are taxed to the State of Tennessee, for which execution may issue if necessary.

      . At some point during the encounter, Odell told the defendant that he would not charge her for the marijuana he found in the vehicle.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . The Fourth Amendment is applicable to the states through the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

      . The defendant cites to the concurring opinion in Daniel, which would have held that the mere approach of the officer and request for identification constituted a "seizure.” Id. at 429 (Byers, S.J., & Birch, J., concurring and dissenting). The majority opinion, however, did not expand the definition of "seizure” to include a simple request for identification, but relied on the fact that the officer did not immediately return the driver's license, instead retaining it for a period of time to run the records check.

      .The Carty court also held that the appearance of nervousness alone is not sufficient grounds to support a finding of reasonable and articulable suspicion.

      . The New York Court of Appeals based their decision on state common law, not constitutional grounds. Hollman, 590 N.E.2d at 212-13.

      . In any event, it appears that this issue is meritless. The traffic stop was made after the defendant had committed a traffic infraction in failing to use her turn signal. See Tenn. Code Ann. §§ 55-8-142 and -143 (requiring that turn signals be used to indicate turns if other traffic may be affected by the movement). The testimony at the suppression hearing indicated that there was an oncoming car that could have been affected by her turn. Likewise, as he was following her, Odell could have been affected by the turn.

      . This language is deleted in the current edition. The current C.J.S. citation discussing the criteria for voluntariness of consent is 79 C.J.S. Searches and Seizures § 119(a) (1995 & Supp.2004).

      . Justices Brennan and Marshall dissented in Schneckloth, articulating their view that the burden should be on the state to demonstrate knowledge on the part of the person involved that he or she had a choice in the matter. Justice Brennan stated that he was unable to comprehend how a citizen can waive a right of which he is unaware and outlined several ways in which the state might satisfy its burden.

      . The defendant testified that in this prior stop, officers told her she did not have a choice in the search of the car. The trial court, however, questioned the defendant’s credibility on this matter.

      . People v. Powell, 199 Mich.App. 492, 502 N.W.2d 353, 356 (1993) (citing Florida v. Jimeno, 500 U.S. 248, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991)) (holding consent may be withdrawn prior to a search's completion stating "[t]he United States Supreme Court has noted that a suspect may limit the scope of the consent given to conduct a search.”); see generally, State v. Garcia, 123 S.W.3d 335, 343 (Tenn.2003) (the defendant signed consent form which stated the right to revoke consent).


source: Caselaw Access Project

author: WILLIAM C. KOCH, JR., P.J., M.S.,

license: Public Domain

text:
    Carolyn Marie Leasure WHITE et al. v. Timothy Wade MOODY.
    Court of Appeals of Tennessee, at Nashville.
    Dec. 8, 2004 Session.
    Dec. 30, 2004.
    Permission to Appeal Denied by Supreme Court March 21, 2005.

      Wende J. Rutherford, Nashville, Tennessee and Charlotte U. Fleming, Springfield, Tennessee, for the appellant, Timothy Wade Moody.
    Frank E. Mondelli, Nashville, Tennessee, for the appellees, Carolyn Marie Leas-ure White and Robert Wayne White.
   OPINION

WILLIAM C. KOCH, JR., P.J., M.S.,

delivered the opinion of the court,

in which WILLIAM B. CAIN and FRANK G. CLEMENT, JR., JJ., joined.

This is the third appeal of a case involving a divorced father’s parental rights to his eleven-year-old daughter. The father maintained only sporadic contact with his daughter following his divorce from the child’s mother. After the child’s mother remarried, she and her new husband filed a petition in the Chancery Court for Robertson County seeking to terminate the father’s parental rights and to permit the mother’s new husband to adopt the child. We reversed the first order terminating the father’s parental rights because the trial court had failed to conduct the statutorily required best interests analysis. On remand, the trial court determined that terminating the father’s parental rights was in the child’s best interests without conducting an evidentiary hearing. We reversed the second termination order and remanded the case to enable the parties to present evidence. Following an evidentia-ry hearing, the trial court entered a third order terminating the father’s parental rights and granting the stepfather’s petition to adopt the child. The father has appealed the trial court’s conclusion that terminating his parental rights is in his daughter’s best interests. We have determined that the record contains clear and convincing evidence to support the trial court’s decision.

I.

On June 11, 1992, Carolyn Marie Leas-ure White and Timothy Wade Moody wed in Virginia Beach, Virginia. Ms. White was only eighteen years old, and Mr. Moody was twenty. When they separated four months later, Ms. White returned to her parents’ home in Virginia Beach, and Mr. Moody went to live with his parents in Texas. Ms. White was pregnant when the parties separated, and in June 1993, she gave birth to Nicole Lyn Leasure-Moody. In August 1994, Ms. White and Mr. Moody were divorced in the Circuit Court for the City of Virginia Beach, and one month later, Ms. White married Robert Wayne White.

The Virginia divorce decree granted Ms. White and Mr. Moody joint custody of their daughter. Ms. White was designated as the primary residential parent, and Mr. Moody was granted visitation rights consisting of one week of daytime visitation each year at his home in Texas, as well as full and unlimited daytime visitation in Virginia Beach at his expense and after forty-eight hours notice to Ms. White. The decree also required Mr. Moody to pay Ms. White $305 per month in child support.

During the first few years following Nicole’s birth, Mr. Moody took reasonable advantage of this visitation rights. Even though he continued to reside in Texas, he traveled to Virginia Beach to visit Nicole shortly after she was born, and he returned again in December 1993. He made several telephone calls during 1993 and paid his child support regularly. In 1994, he visited Nicole several times and continued making telephone calls, although the calls were relatively short because of Nicole’s age. Mr. Moody visited Nicole twice in 1995 and continued to make his regular child support payments; however, the number of his telephone calls decreased. In addition to his visits and telephone calls during this time, Mr. Moody sent Nicole Christmas and birthday presents, although these presents frequently arrived late and oftentimes did not include a card or a note.

Sometime around November 1995, Ms. White, her husband, Nicole, and their two other children moved to Springfield, Tennessee. Because Mr. Moody was not actively part of Nicole’s everyday life, Mr. White gladly took on many parenting responsibilities, including changing diapers, taking care of Nicole when she was ill, and nurturing and caring for her. As time passed, Nicole came to consider Mr. White as her father and the Whites’ two children as her siblings.

Problems with Mr. Moody’s relationship with Nicole began to surface in 1996. Mr. Moody was suffering from bipolar disorder. He did not visit Nicole in Tennessee that year, although he continued to call and to send gifts. He paid his child support sporadically because he was having difficulty maintaining employment. As the year went on, Ms. White and her husband became increasingly concerned about Mr. Moody’s relationship with Nicole. For his part, Mr. White became increasingly interested in adopting Nicole.

As Mr. Moody’s visits with Nicole became less frequent, so did his telephone calls. Nicole went from December 1996 through March 1997 without hearing anything from Mr. Moody. Accordingly, in early 1997, the Whites filed a petition to terminate Mr. Moody’s parental rights. When Mr. Moody heard about the petition, he begged Ms. White to withdraw it and promised that he would resume paying his child support and contacting Nicole regularly. The Whites reluctantly withdrew the termination petition after Mr. Moody resumed telephoning Nicole. However, this was short-lived. From June 1997 until October 1998, the only contact Mr. Moody had with Nicole was one telephone call and one card. He stopped paying his child support regularly, and at one point, made no child support payments for ten months.

On October 7, 1998, the Whites filed a petition in the Chancery Court for Robertson County again seeking to terminate Mr. Moody’s parental rights and to permit Mr. White to adopt Nicole. This petition prompted Mr. Moody to resume his attempts to contact Nicole in 1999. In May 1999, after the Whites’ lawyer informed Mr. Moody that he could no longer visit with Nicole, Mr. Moody requested the trial court to enforce the visitation provisions in the parties’ divorce decree. During June 1999, Mr. Moody talked with Nicole by telephone once and also had a visitation with her — his first personal visitation since July 1995.

Following a hearing on July 8, 1999, the trial court filed an order on August 5, 1999, denying Mr. Moody’s request for visitation, as well as suspending all further visitation until the final hearing on the Whites’ termination and adoption petitions. Mr. Moody’s failure to pay child support or to contact Nicole for approximately sixteen months weighed heavily on the trial court’s mind. Despite its awareness that Mr. Moody had been twice hospitalized with depression, the trial court concluded that his past behavior was inexcusable.

On March 9, 2000, the trial court conducted the first hearing on the Whites’ termination and adoption petitions. The court concluded that Mr. Moody had abandoned Nicole and that Mr. White had such a close relationship with Nicole that she considered him to be her father. Accordingly, in June 2000, the court entered an order terminating Mr. Moody’s rights, finding him in civil contempt for failure to pay child support, and granting Mr. White’s adoption petition. Mr. Moody appealed the decision to this court. By this time, Mr. Moody had been diagnosed with bipolar disorder. He was being treated by a physician and was receiving medication through the Department of Veterans Affairs.

On May 18, 2001, this court filed an opinion affirming the trial court’s conclusion that Mr. Moody had abandoned Nicole but vacating the portions of the order terminating Mr. Moody’s parental rights and permitting Mr. White to adopt Nicole. We noted that the trial court had failed to make a specific finding that terminating Mr. Moody’s parental rights was in Nicole’s best interests. Accordingly, we remanded the case to the trial court with directions to conduct a hearing regarding whether terminating Mr. Moody’s parental rights was in Nicole’s best interests.

The trial court conducted two days of hearings in November 2001 and March 2002 to determine whether terminating Mr. Moody’s parental rights was in Nicole’s best interests, During this hearing, the trial court limited its consideration to the original record and declined to permit the parties to introduce new evidence regarding events occurring after March 2000. Ultimately, in April 2002, the trial court entered a second order concluding that terminating Mr. Moody’s parental rights was in Nicole’s best interests. Mr. Moody appealed again. On July 25, 2003, we again vacated the judgment terminating Mr. Moody’s parental rights after concluding that the parties should have been permitted to present evidence regarding Nicole’s best interests.

In September 2003, Mr. Moody requested the trial court’s approval for in-person visitation with Nicole. On November 19, 2003, the trial court filed an order denying visitation because Mr. Moody had not had in-person visitation since 1999. By the time of the February 12, 2004 hearing, Mr. Moody was steadily employed at a meat packing plant in Booneville, Arkansas where he was earning $10.50 per hour. He and his fiancée had established a stable home and were planning to be married, and Mr. Moody enjoyed a good relationship with his fiancée’s two daughters.

On April 7, 2004, the trial court entered its third order terminating Mr. Moody’s parental rights and approving Mr. White’s adoption of Nicole. The trial court relied heavily on the testimony of Dr. Jay Woodman, a clinical psychologist who evaluated Nicole. Dr. Woodman had concluded (1) that Nicole did not have any connection with Mr. Moody, (2) that Mr. Moody had frequently violated Nicole’s trust by breaking promises to telephone her or to send her presents, and (3) that Mr. Moody’s conduct upset Nicole. However, on April 14, 2004, the trial court entered an order permitting Mr. Moody to continue making telephone and mail contact with Nicole pending appeal. On September 15, 2004, the trial court entered an order granting Ms. White a $4,480 judgment against Mr. Moody for his child support arrearage. Mr. Moody has again appealed to this court.

II.

The TRIAL Court’s Compliance With Tenn.Code Ann. § 36-1-113(k) (Supp.2004)

At the outset, Mr. Moody takes issue with the trial court’s failure to file written findings of fact and conclusions of law within thirty days of the hearing as required by Tenn.Code Ann. § 36-1-113(k). The Whites, apparently believing that this issue is a trivial technicality, have ignored it in their brief. We, however, view compliance with the explicit requirements regarding written findings of fact and conclusions of law in termination cases with great seriousness. Even though there is no question that the trial court failed to comply with Tenn.Code Ann. § 36 — 1—113(k), we have determined that this case should not be remanded for the entry of written findings of fact and conclusions of law because of the inordinate delay that has already occurred in the final disposition of this case.

For the past four years, this court has repeatedly called the plain, mandatory requirements of Tenn.Code Ann. § 36-1-113(k) to the attention of the trial courts. Unlike ordinary civil proceedings, trial courts must enter written findings of fact and conclusions of law in termination cases within thirty days following the conclusion of the termination hearing. We have cautioned the trial courts against simply making oral findings of fact from the bench and then directing that they be incorporated in the final order. See, e.g., In re S.M., 149 S.W.3d 632, 639 n.12 (Tenn.Ct.App.2004). We have likewise pointed out that failure to comply with Tenn.Code Ann. § 36-1-113(k) may necessitate remanding the case with directions to prepare written findings of fact and conclusions of law. See e.g., In re M.J.B., 140 S.W.3d 643, 653-54 (Tenn.Ct.App.2004).

In this case, the trial court made oral findings from the bench at the conclusion of the February 12, 2004 hearing. However, it did not enter a final order until April 7, 2004, and this order contained neither findings of fact nor conclusions of law. It simply recites that “it is in the best interest and welfare of the minor child for the Respondent’s parental rights [to] be terminated and that the step-father be allowed to adopt the minor child.” Accordingly, no conclusion can be drawn other than the trial court has not complied with Tenn. Code Ann. § 36-l-113(k).

In most circumstances, the appropriate remedy for the trial court’s oversight would be to vacate the judgment terminating Mr. Moody’s parental rights and granting Mr. White’s adoption petition and remand the case to the trial court with directions to file written findings of fact and conclusions of law in accordance with TenmCode Ann. § 36-l-113(k). However, we have already been required to remand this case twice. These remands have delayed the final resolution of this case by approximately three years. Incurring further delay by remanding this case a third time will not serve the interests of any of the persons who have been enmeshed in this litigation for seven long years. Accordingly, rather than remanding the case as we would customarily do, we will address the substantive merits of the trial court’s conclusion that terminating Mr. Moody’s parental rights at this time is in Nicole’s best interests using the trial court’s oral findings of fact.

III.

The Best Intekests of the Child

Appeals from orders terminating parental rights customarily present two issues. The first issue is whether grounds exist for terminating a parent’s parental rights. If the answer to this issue is yes, then the second issue is whether terminating the parental rights is in the child’s best interests. We are not required here to consider whether grounds exist for terminating Mr. Moody’s parental rights because that issue has already been decided against him on the first appeal when we concluded that the record contained clear and convincing evidence that he had abandoned Nicole. White v. Moody, 2001 WL 537160, at *1. Mr. Moody did not appeal from that decision, and it has now become the law of the case. Accordingly, the only issue now before us is whether terminating Mr. Moody’s parental rights to Nicole is in Nicole’s best interests.

A.

The ultimate goal of every proceeding involving the care and custody of a child is to ascertain and promote the child’s best interests. However, as important as these interests are, they do not dominate every phase of a termination of parental rights proceeding. The best interests of the child do not become the paramount consideration until the trial court has determined that the parent is unfit based on clear and convincing evidence of one or more of the grounds in TenmCode Ann. § 36 — 1—113(g) (Supp. 2004). Once a parent has been found to be unfit, the interests of the parent and the child diverge. While the parent’s interests do not evaporate upon a finding of unfitness, Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1888, 1394-95, 71 L.Ed.2d 599 (1982), the focus of the proceedings shifts to the best interests of the child.

While a finding of parental unfitness is a necessary prerequisite to terminate a parent’s rights, a finding of unfitness does not necessarily require that the parent’s rights be terminated. In re Termination of Parental Rights of Alexander V., 271 Wis.2d 1, 678 N.W.2d 856, 863 (2004). Not all parental misconduct is irredeemable. Thus, Tennessee’s termination of parental rights statutes recognize the possibility that terminating an unfit parent’s parental rights is not always in the child’s best interests.

The concept of the child’s best interests evolved in the context of divorce proceedings and has now migrated from legal discourse into popular culture. What is best for children depends on values and norms upon which reasonable persons can differ. Rideout v. Riendeau, 761 A.2d 291, 296 n. 5 (Me.2000). Thus, critics of the best interests of the child standard often point out that its non-specificity leads to unpredictable and inconsistent outcomes. Troxel v. Granville, 530 U.S. 57, 101, 120 S.Ct. 2054, 2079, 147 L.Ed.2d 49 (2000) (Kennedy, J., dissenting); American Law Institute, Principles of the Law of Family Dissolution 2 & n. 2 (Tentative Draft No. 3, Mar. 3, 1998); Julie E. Artis, Judging The Best Interests of the Child: Judges’ Accounts of the Tender Years Doctrine, 38 Law & Soc’y Rev. 769, 774-75 (2004). However, others have pointed out that the courts’ persistent reliance on the best interests of the child standard suggests that no more appealing formulation is likely to be offered and that it is not much less workable than other standards the law has adopted. 2 Homee H. Clark, The Law of Domestic Relations in the United States § 20.4, at 495 (2d ed. 1987) (“The Law of Domestic Relations”).

Professor Clark, the author of one of the seminal domestic relations treatises, has observed that “few if any experienced judges and lawyers think that ... [the child’s best interests standard] goes very far toward deciding cases. That can only be done by considering the facts of the individual case against the background of factors held to be relevant in earlier cases.” The Law of Domestic Relations § 20.6, at 479. In recent years, the Tennessee General Assembly, like other state legislatures, has undertaken to codify the factors that courts should consider when called upon to ascertain a child’s best interests in various circumstances. In termination of parental rights cases such as this one, the General Assembly has provided the courts with a non-exclusive list of nine factors to consider. Tenn. Code Ann. § 36 — 1—113(i) (Supp.2004). Thus, ascertaining a child’s best interests in a termination proceeding is a fact-intensive inquiry requiring the courts to weigh the evidence regarding the statutory factors, as well as any other relevant factors, to determine whether irrevocably severing the relationship between the parent and the child is in the child’s best interests. The child’s best interests must be viewed from the child’s, rather than the parent’s, perspective. In re Hammett, No. 245221, 2003 WL 22416515, at *2 Mich. Ct.App. Oct. 23, 2003); In re L.N., Jr., 690 N.W.2d 245, 247 (S.D. 2004); In re Marriage of Pape, 139 Wash.2d 694, 989 P.2d 1120, 1130 (1999).

B.

Ascertaining a child’s best interests in cases of this sort does not call for a rote examination of each of Tenn.Code Ann. § 36 — 1—113(i)’s nine factors and then a determination of whether the sum of the factors tips in favor of or against the parent. The relevancy and weight to be given each factor depends on the unique facts of each case. Thus, depending upon the circumstances of a particular child and a particular parent, the consideration of one factor may very well dictate the outcome of the analysis.

We have here an eleven-year-old child who has had extremely limited interaction with her father during her formative years. This lack of interaction can be attributed to four things: (1) her parents’ separation and eventual divorce, (2) the geographical distance between her home and her father’s home, (3) her father’s own psychological struggles, and (4) the legal barriers erected by the trial court beginning in August 1999. From the child’s point of view, the reasons for the lack of interaction matter little. What matters is that she feels no connection with her father.

What matters also is that during the past nine years the child has not longed for a relationship with her father because that void has been filled by her stepfather. She has developed a strong attachment to Mr. White resulting from the day-to-day attention he has paid to her physical care, nourishment, comfort, affection, and stimulation. Mr. White has been Nicole’s de facto parent ever since late 1995, so much so that she refers to him as her “father” and to Mr. Moody as her “father in Texas.”

During the seven years since the Whites filed their petition to terminate Mr. Moody’s parental rights, Mr. Moody has made strides in bringing order to his personal life. He has sought treatment for his bipolar disorder and, with this illness in check, has restored balance to his life. He is steadily employed and has developed a healthy relationship with his fiancée and her children. He has also attempted, to the best of his ability, to reconnect with Nicole. Unfortunately, he has been unable to mitigate the fact that the passage of time has made him a stranger to his daughter.

As the circumstances existed at the February 2004 hearing, Nicole had no connection with Mr. Moody. They have not seen each other for almost five years. Their infrequent, relatively brief telephone conversations lack substance, depth, or warmth. Mr. Moody is simply not a part of Nicole’s life. She rarely expresses an interest in seeing him and, in fact, expresses tearful concern at the prospect of being required to visit with him. Based on these circumstances, Nicole should, in the words of Dr. Woodman, be permitted to “move ahead” with her life without Mr. Moody. Thus, viewing the evidence from Nicole’s point of view, terminating Mr. Moody’s parental rights is clearly in her best interests.

Accordingly, we conclude that the record contains clear and convincing evidence supporting the trial court’s conclusion that terminating Mr. Moody’s parental rights at this time is in Nicole’s best interests. Having upheld the termination of Mr. Moody’s parental rights, we likewise affirm the trial court’s decision to permit Mr. White to adopt Nicole.

IV.

MR. Moody’s Obligation for the Child Support Arrearage

As a final matter, Mr. Moody insists that he is entitled to receive a credit against the judgment for his child support arrearage for all the child support he paid “during the pendency of the appellate process.” As we understand his reasoning, he believes that he would not have been obligated to pay this child support had his parental rights been terminated earlier and now that his parental rights have been terminated, he is entitled to receive this money back in the form of a credit against the $4,480 judgment against him and a refund of all money over and above that amount.

Mr. Moody’s brief discusses this argument briefly and in a very cursory fashion. We do not understand him to be arguing that he was somehow forced to pay child support during the periods from June 2000 through May 2001 or April 2002 through July 2003 when his parental rights had been terminated. Accordingly, his argument focuses on child support payments he made between June 2000 and February 2004 during the times when his parental rights were not terminated and he was obligated to provide financial support for his child. We know of no legal or equitable principle that excuses him from this obligation. Accordingly, we affirm the $4,480 judgment against him. However, we also note that because we have affirmed the April 7, 2004 order terminating Mr. Moody’s parental rights, his obligation to support Nicole financially ended as of the date of that order.

V.

We affirm the judgments of April 7, 2004 and September 15, 2004 and remand the case to the trial court for further proceedings consistent with this opinion. We tax the costs of this appeal to Timothy Wade Moody and his surety for which execution, if necessary, may issue.

      . It is now our custom to use pseudonymous designations for the parents and children in cases of this sort. We have not followed that convention in this case because we have already rendered two opinions using the parties’ names.

      . Although the Whites state that they visited a lawyer and arranged for the petition to be filed, there is some confusion in the record as to whether this petition was actually ever filed.

      . The appellate record does not include a transcript of the July 8, 1999 hearing, although it does contain the exhibits filed with the court during that hearing.

      . The trial court may have allowed Mr. Moody some limited telephone contact with Nicole.

        .White v. Moody, No. M2000-01778-COA-R3-CV, 2001 WL 537160, at *1 (Tenn.Ct.App. May 18, 2001) (No Tenn. R.App. P. 11 application filed).

      . White v. Moody, No. M2002-01287-COA-R3-CV, 2003 WL 21730761, at *2 (Tenn.Ct.App. July 25, 2003) (No Tenn. R.App. P. 11 application filed).

      . The courts in forty-nine states and the District of Columbia have been charged by statute to use the best interests of the child standard when it comes to custody determinations. Naomi R. Chan, Reframing Child Custody Decisionmaking, 58 Ohio St. L.J. 1, 9-14 (1997).

      . The Tennessee General Assembly has devised different sets of factors to guide the court’s consideration of the child’s best interests in other contexts. See, e.g., Tenn.Code Ann. § 36-6-106(a) (2001) (divorce and other proceedings); Tenn.Code Ann. § 36-6-108(c) (2001) (parental relocation); Tenn.Code Ann. § 36-6-307 (2001) (grandparent visitation); Tenn.Code Ann. § 36-6-404(b) (Supp.2004) (parenting plans).

      .In another context, we have noted that ”[t]he 'best interests' analysis is broad and subjective. It does not employ hard and fast rules and is largely fact-dependent. The Tennessee Supreme Court has candidly noted that the 'best interests' analysis cannot provide perfect solutions to custody and visitation disputes." Yeager v. Yeager, No. 01A01-9502-CV-00029, 1995 WL 422470, at *4 (Tenn.Ct.App. July. 19, 1995) (No Tenn.R.App. P. 11 application filed) (citations omitted).


author: JAMES T. WORTHEN, Chief Justice.

text:
    TEXAS ELECTRIC COOPERATIVE and Stephen Paul Bumstead, Appellants, v. Mary R. DILLARD, Individually and as Community Survivor of the Estate of Kenneth Lewis Dillard, Deceased, and Mary R. Dillard, a/n/f for Kimberly Dillard, a Minor, Appellees.
    No. 12-01-00258-CV.
    Court of Appeals of Texas, Tyler.
    April 16, 2003.
    Rehearing Overruled May 30, 2003.

      D. Bradley Dickinson, Michael V. Winchester, Michael V. Winchester & Associates, P.C., Plano, for appellants.
    Glenn A. Sodd, R. Matt Dawson, Dawson & Sodd, P.C., Corsicana, for appellees.
    Panel consisted of WORTHEN, C.J. and GRIFFITH, J.
   OPINION

JAMES T. WORTHEN, Chief Justice.

Texas Electric Cooperative (“TEC”) and Stephen Paul Bumstead (“Bumstead”) appeal the trial court’s judgment entered following a jury verdict in favor of Mary R. Dillard, Individually and as Community Survivor of the Estate of Kenneth Lewis Dillard, Deceased, and Mary R. Dillard, a/n/f for Kimberly Dillard, a minor (“Dillard”). TEC raises four issues on appeal. We reverse and remand for a new trial.

Background

On May 27, 1996, Bumstead was driving a TEC truck loaded with utility poles from Jasper to Muenster, Texas. At approximately 10:00 p.m., while traveling westbound on U.S. Highway 175 (“US-175”) between Cuney, Texas and the Neches River bridge (the “bridge”), Bumstead hit one of approximately nine black cows wandering about on the highway. Only minutes later, Mae Joyce Brown (“Brown”), who was driving eastbound on US-175, crossed the bridge and immediately encountered the cow’s carcass. Brown’s vehicle collided with the carcass, was vaulted through the air and struck the Dillard pickup truck, which was traveling westbound on US-175. Kenneth Dillard, who was an occupant in the pickup truck, was killed as a result of the collision with Brown’s vehicle. The Dillards filed suit against TEC and Bumstead alleging that Bumstead’s negligence was the cause of Kenneth Dillard’s death. TEC and Bum-stead answered the suit and pleaded the affirmative defenses of sole proximate cause and unavoidable accident. The matter proceeded to jury trial. During the charge conference, TEC requested that the trial court include instructions on both sole proximate cause and unavoidable accident as part of its negligence question. The trial court submitted the unavoidable accident instruction, but refused to submit the sole proximate cause instruction. Ultimately, the jury found that Bumstead’s negligence led to the death of Kenneth Dillard. The trial court entered judgment against TEC and this appeal followed.

Sole Proximate Cause Instruction

In its first issue, TEC alleges that the trial court erred in refusing to submit an instruction on sole proximate cause in the court’s charge. The standard of review for error in a court’s charge is abuse of discretion. Texas Dep’t of Human Services v. E.B., 802 S.W.2d 647, 649 (Tex.1990). The test for abuse of discretion is 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).

In its charge, the trial court must submit all questions, instructions and definitions raised by the pleadings and evidence. See Hyundai Motor Company v. Rodriguez, 995 S.W.2d 661, 663 (Tex.1999). If the evidence supports a requested instruction, and the instruction has been raised properly by the pleadings, the trial judge has a duty to submit the instruction. Charter Oak Fire Ins. Co. v. Taylor, 658 S.W.2d 227, 229 (Tex.App.Houston [1st Dist.] 1983, no writ).

TEC specifically pleaded that the cattle owner’s failure to keep the cows off the highway was the sole proximate cause of Kenneth Dillard’s death. Moreover, during the charge conference, TEC requested an instruction stating that “there may be more than one proximate cause of an event, but if an act or an omission of any person not a party to the suit was the ‘sole proximate cause’ of an occurrence, then no act or omission of any other person could have been a proximate cause.” The trial judge refused to submit TEC’s proposed instruction.

In order for a party to prove negligence, the evidence must demonstrate (1) a legal duty owed by one person to another, (2) a breach of that duty, and (8) damages proximately resulting from the breach. See Mellon Mortg. Co. v. Holder, 5 S.W.3d 654, 663 (Tex.1999) (Baker, J. concurring); Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.1990). Proximate cause requires proof of both cause in fact and foreseeability. See City of Gladewater v. Pike, 727 S.W.2d 514, 517 (Tex.1987). The test for cause in fact is whether the negligent act or omission was a substantial factor in bringing about an injury, without which the harm would not have occurred. See Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex.1995). Foreseeability requires that a person of ordinary intelligence should have anticipated the danger caused by the negligent act or omission. Id. at 478. However, it is a complete defense to a negligence suit that the conduct of a third party was the sole proximate cause of an injury, regardless of whether the third party was negligent. See Huckaby v. A.G. Perry and Son, Inc., 20 S.W.3d 194, 207 (Tex.App.-Texarkana 2000, no pet.) (citing Rodriguez v. Moerbe, 963 S.W.2d 808, 820-21 (Tex.App.San Antonio 1999, pet. denied)).

TEC contends that there was evidence in the record to support its requested instruction on sole proximate cause. The record reflects that Department of Public Safety (“DPS”) Trooper Jim Cle-land, who investigated the collision, stated that the cause of the accident leading to Kenneth Dillard’s death was the cow in the road. The record further indicates that an investigation continued for months to determine who owned the small herd of cattle which had wandered onto the road that night. Roland Brown (“Brown”), an attorney for Dillard, testified that a very thorough investigation had been made to try to find the owner of the cows because the question of how they came to wander onto the highway could prove to be a pertinent consideration for the jury. Brown further testified that the cows had generic identification tags and that the matter had been investigated so thoroughly as to exhume one of the cows to check its tag. The DPS and the Southwestern Cattle Raiser’s Association also took part in attempting to determine who owned the cows in question.

Richard Turner, chairman of the National Academy for Professional Driving, testified that a cow standing in the road is a hazard to the traveling public. Richard Fulton (“Fulton”), the DPS trooper investigating Bumstead’s collision with the cow, testified that a dark-colored animal would be very difficult for a driver to see at night. Fulton further testified that it was his understanding that Bumstead did not have time to take evasive action when he saw the cows in the roadway. As such, we conclude that there was more than a scintilla of evidence supporting the issue of sole proximate cause.

However, Dillard argues that even if there was sufficient evidence to support the sole proximate cause instruction, such an instruction was unnecessary because the court submitted an unavoidable accident instruction. An unavoidable accident is an event not proximately caused by the negligence of any party to it. Reinhart v. Young, 906 S.W.2d 471, 472 (Tex.1995). The Texas Supreme Court has further explained that an unavoidable accident instruction is proper only when there is evidence that the event was proximately caused by a non-human condition and not by the negligence of any party to the event. See Hill v. Winn Dixie Texas, Inc., 849 S.W.2d 802, 808 (Tex.1993).

Here, Dillard contends that the cows were a condition, reasoning that because the jury answered “yes” to the question of whether Bumstead was negligent, it must have determined that the situation did not amount to an unavoidable accident. However, it is also reasonable that the jury could have determined that human conduct other than that of Bumstead triggered the series of events that ultimately caused Kenneth Dillard’s death. Indeed, from the evidence presented to it, the jury could have determined that the owner who placed the tags in the ears of the cows could have been, by permitting the cows to wander onto the highway, the sole proximate cause of the death of Kenneth Dillard.

TEC was entitled to have the jury consider whether the actions of the unidentified owner set in motion the sequence of events leading to the death of Kenneth Dillard. It is good practice to explain to the jury each litigant’s theory of the case and then let the jury choose which theory to accept. See Perez v. Weingarten Realty Investors, 881 S.W.2d 490, 498 (Tex.App. San Antonio, pet. denied) (Peeples, J., concurring). A sole proximate cause instruction would have permitted the jury in the instant case to fully consider the matter in making its determination. As such, we hold that the trial court erred by refusing to submit the sole proximate cause instruction requested by TEC.

Harm Analysis

No judgment may be reversed on appeal on the ground that the trial court made an error of law unless the court of appeals concludes that the error complained of probably caused the rendition of an improper judgment. Tex.R.App. P. 44(a)(1); see also Quantum Chemical Corp. v. Toennies, 47 S.W.3d 473, 480 (Tex.2001). To determine whether the instruction probably caused the rendition of an improper judgment, we examine the entire record. Id.

pleading and presenting evi-evithat an unidentified rancher allowed his cows to wander onto US-175 on the night in question, TEC could have reason-reasonargued that the rancher’s conduct set off the chain of events which ultimately caused the death of Kenneth Dillard. How-Howabsent a sole proximate cause in-inin the charge, the first human conduct in the causal chain that the jury was permitted to consider was that of Bumstead. Thus, if the jury concluded that it was human conduct that ultimately caused Kenneth Dillard’s death, then it had no alternative but to find that causal chain began with Bumstead’s actions. On the other hand, had the jury been given a sole proximate cause instruction, it could have considered the potential ramifications of the unidentified owner’s conduct as well.

The Texas Supreme Court considered a similar circumstance involving sole proximate cause in Bel-Ton Elec. Serv., Inc. v. Pickle, 915 S.W.2d 480 (Tex.1996). In Pickle, Bel-Ton Electric, Inc., whom the jury found to be negligent, was not permitted to have its sole proximate cause issue included in the court’s charge despite the fact that Bel-Ton had presented evidence at trial raising the issue of sole proximate cause. Id. 480-81. The supreme court determined that such an issue was critical to Bel-Ton’s defense and that the trial court’s refusal to submit the sole proximate cause instruction was reversible error. Likewise, we hold that the sole proximate cause issue was critical to TEC’s defense in the instant case and that the trial court’s refusal to submit such an instruction was reversible error. TEC’s first issue is sustained.

Conclusion

Having held that the trial court committed reversible error by refusing to submit an instruction related to sole proximate cause as requested, we reverse the judgment of the trial court and remand the cause for a new trial.

      . Specifically, the jury found that the negligence "of Texas Electric Cooperative, Inc. [a]nd/or their employees” proximately caused the occurrence in question.

      . As our holding related to TEC's first issue is dispositive of the case as a whole, we do not reach TEC's remaining issues.


text:
    TEXAS ELECTRIC COOPERATIVE and Stephen Paul Bumstead, Appellants, v. Mary R. DILLARD, Individually and as Community Survivor of the Estate of Kenneth Lewis Dillard, Deceased, and Mary R. Dillard, a/n/f for Kimberly Dillard, A Minor, Appellees.
    No. 12-01-00258-CV.
    Court of Appeals of Texas, Tyler.
    July 20, 2005.

      D. Bradley Dickinson, Michael Y. Winchester, Michael V. Winchester & Associates, P.C., Plano, for Appellants.
    Glenn A. Sodd, R. Matt Dawson, Dawson & Sodd, P.C., Corsicana, for Appellees.
    Panel consisted of WORTHEN, C.J., GRIFFITH, J. and DeVASTO, J.
   OPINION

JAMES T. WORTHEN, Chief Justice.

Texas Electric Cooperative (“TEC”) and Stephen Bumstead appeal a judgment for damages awarded to Mary Dillard following a jury trial. TEC and Bumstead raise three issues on appeal. We affirm.

Background

On May 27, 1996, Bumstead was driving a TEC tractor-trailer rig loaded with utility poles from Jasper, Texas to Muenster, Texas. At approximately 10:00 p.m., while traveling westbound on two-lane U.S. Highway 175, Bumstead crested a hill overlooking the Neches River bridge. As he crested the hill, Bumstead saw eight or nine cows wandering about on the highway between his truck and the bridge. Bum-stead’s truck collided with one of the cows, which fell dead in the eastbound lane about two hundred fifty feet from the bridge. Bumstead had difficulty maintaining control of his tractor-trailer after the collision, but was able to cross the bridge and stop the truck about three-tenths of a mile (1,584 feet) beyond where the dead cow lay.

Bumstead immediately radioed the driver of an approaching eastbound Arkansas Freightways tractor-trailer to warn him of the dead cow in the roadway. Bumstead also requested that the trucker, who had a cell phone, contact 9-1-1 to report the accident. The Arkansas Freightways truck avoided the carcass in the road and continued eastbound towards Cuney, Texas.

Minutes later, May Joyce Brown, who was traveling eastbound on U.S. 175, unwittingly drove past Bumstead’s unillumi-nated rig and across the bridge. According to Brown, as she crossed the bridge, she was traveling between thirty-five and forty miles per hour. After crossing the bridge, she came upon the cow carcass in her lane. Brown stated that she did not have time to apply her brakes before her car struck the cow carcass and vaulted into the westbound lane. Still airborne, Brown’s car struck the Dillards’ vehicle, killing Kenneth Dillard and injuring his wife, Mary, and daughter, Kimberly.

Mary Dillard filed suit against TEC and Bumstead both in her capacity as community survivor of Kenneth Dillard and as next friend of their minor daughter. The matter proceeded to jury trial. Ultimately, the trial court entered a judgment that TEC’s and Bumstead’s negligence caused the death of Kenneth Dillard and the injuries of Mary and Kimberly Dillard and awarded damages. This appeal followed.

Expert Testimony

In their second issue, TEC and Bumstead contend that the trial court erred in refusing to permit Department of Public Safety (“DPS”) Officer Cleland to testify as an expert witness concerning Bumstead’s ability to avoid hitting the cow. The pertinent testimony is as follows:

Q. All right. Is there any way for you, as we sit here today, to determine, given the truck being driven by Mr. Bumstead traveling fifty miles an hour with an eighty-thousand-pound load, whether or not he would have had time to stop or avoid the cows once he saw them the night of the accident?
A. No, I wouldn’t say that. There are two factors involved here. One is that the cow was dark in their color and low beam headlights, or even high beam headlights probably have about three hundred feet ahead of you. A person still has to interpret what they’re seeing, along with reaction time, and so absolutely not. I don’t think he could have avoided it.

The decision whether to admit evidence rests within the discretion of the trial court. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex.1995). A two-part test governs the admissibility of expert testimony: (1) the expert must be qualified and (2) the testimony must be relevant and be based on a reliable foundation. See Helena Chemical Company v. Wilkins, 47 S.W.3d 486, 499 (Tex.2001). To be relevant, the proposed testimony must be sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute. Robinson, 923 S.W.2d at 556; see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150, 119 S.Ct. 1167, 1175, 143 L.Ed.2d 238 (1999) (when the factual basis of testimony is sufficiently called into question, the trial judge must determine whether the testimony has a reliable basis and is therefore admissible). If an expert relies upon unreliable foundational data, any opinion drawn from that data is likewise unreliable. Wilkins, 47 S.W.3d at 499.

Cleland testified that he had joined the DPS in 1990. He showed that he had been trained in advanced accident investigation as well as advanced commercial accident reconstruction and had received over five hundred hours of training in both disciplines. Further, Cleland testified that he had personally investigated over four hundred accidents during his tenure with the DPS. We conclude that the trial judge heard sufficient testimony to establish Cle-land’s credentials as an expert witness.

When Cleland attempted to testify regarding his opinion concerning whether Bumstead could have avoided the cows, it was within the trial court’s discretion to examine his testimony before allowing the jury to hear it. Cleland testified that he did not recall if he had ever spoken with Bumstead about his collision with the cow. Cleland stated that Officer Fulton had investigated Bumstead’s collision with the cow. Further, Cleland did not ever testify that he had spoken with Fulton about his investigation of Bumstead’s collision with the cow. Indeed, Cleland noted that he could not testify about Bumstead’s ability to avoid the cows because that would amount to speculation. However, in his testimony before the jury, Cleland did offer his opinion as to whether Bumstead could have avoided the cows. If the foundational data underlying opinion testimony is unreliable, an expert will not be permitted to base an opinion on that data because any opinion drawn from that data is likewise unreliable. Merrell Dow Pharms. v. Havner, 953 S.W.2d 706, 714 (Tex.1997); see also Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995) (“When an expert’s opinion is based on assumed facts that vary materially from the actual undisputed facts, the opinion is without probative value.”). Here, the record fails to demonstrate that Cleland had adequate facts to enable him to form an opinion concerning whether Bumstead could have avoided the cow he hit. We hold that the trial court did not abuse its discretion in refusing to allow the jury to hear Cleland’s opinion testimony. TEC and Bumstead’s second issue is overruled.

Legal and Factual Sufficiency

In their third issue, TEC and Bumstead contend that the evidence of causation supporting the jury’s negligence findings is neither legally nor factually sufficient.

Standard of Review

In conducting a legal sufficiency review, we review the evidence in a light that tends to support the finding of the disputed facts and disregard all evidence and inferences to the contrary. Lee Lewis Construction v. Harrison, 70 S.W.3d 778, 782 (Tex.2001). Anything more than a scintilla of evidence is legally sufficient to support the finding. Formosa Plastics v. Presidio Engineers, 960 S.W.2d 41, 48 (Tex.1998).

When reviewing a jury verdict to determine the factual sufficiency of the evidence, a court of appeals must consider and weigh all of the evidence and should set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). This court is not a fact finder and may not pass on the credibility of the witnesses or substitute our judgment for that of the trier of fact. Clancy v. Zale Corporation, 705 S.W.2d 820, 826 (Tex.App.-Dallas 1986, writ ref'd n.r.e.). Findings of fact are the exclusive province of the jury. See Bellefonte Underwriters Ins. Co. v. Brown, 704 S.W.2d 742, 744 (Tex.1986). Accordingly, if there is suffi-dent competent evidence of probative force to support the finding, it must be sustained. Beall v. Ditmore, 867 S.W.2d 791, 795-96 (Tex.App.-El Paso 1993, writ denied). When there is conflicting evidence, the jury’s verdict on such matters is generally regarded as conclusive. Id. at 796.

Analysis

To prove negligence, the plaintiff must introduce admissible evidence that there existed a legal duty owed by the defendant to the plaintiff, a breach of that duty, and damages proximately caused by the breach. Harrison, 70 S.W.3d at 782. Proximate cause consists of two elements-cause in fact and foreseeability. See Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex.1992). Cause in fact, which may be proven by circumstantial evidence, is established if the negligent conduct was a substantial factor in bringing about the injury and without it, harm would not have occurred. Id. The test for foreseeability is satisfied if a person of ordinary intelligence should have anticipated the danger caused by his negligent conduct. Id.

Dillard contends that both of the collisions were caused by TEC’s and Bum-stead’s negligence. She contends that the first collision was caused when TEC overloaded Bumstead’s trailer with utility poles, which led to his driving too fast with a top-heavy load at the time he crested the hill and saw cows on the road. She further contends that the second collision involving Brown and the Dillards’ pickup was caused by Bumstead’s failure to warn Brown of the dead cow in her lane on the other side of the bridge as Brown passed Bumstead’s unilluminated rig.

TEC and Bumstead contend that Bum-stead was driving below the speed limit and that he did not have time to stop before striking one of the cows. They also contend that there was nothing Bumstead could have reasonably done to warn Brown before she struck the dead cow.

The uncontroverted evidence demonstrated that the dead cow was found 1,750 feet away from the crest of the hill. Bum-stead testified that he saw the cows as his truck crested the hill. Bumstead acknowledged that, under reasonable circumstances, he could bring the tractor-trailer to a stop within three hundred feet. However, Bumstead testified that on the night in question, he could not stop in time because his truck was top-heavy due to the load of utility poles.

TEC and Dillard argue that Bumstead was traveling only about fifty miles per hour, well under the speed limit. They further contended that Bumstead had only between two and three seconds to respond to the cows in the road and, therefore, did not have time to stop before he hit one. We conclude that it was not unreasonable for the jury to determine from the evidence before it that Bumstead crested the hill traveling too fast considering the top-heavy load he was carrying and that such was the proximate cause of his collision with the cow.

Dillard further contends that Bumstead recognized the danger when he radioed the driver of the Arkansas Freightways truck to warn him of the dead cow lying in the road ahead and, therefore, undertook a duty to warn others of the danger. She insists that Bumstead should have kept the lights for his truck illuminated and should have activated his emergency flashers to warn oncoming traffic. Dillard also contends that Bumstead could have used a flashlight and other warning devices, such as triangles, to alert oncoming traffic that the dead cow was lying in the roadway ahead.

Bumstead responds that he did not have an opportunity to get out of his truck before Brown collided with the cow. Bum-stead testified that as he opened his door, he heard the sound of Brown’s vehicle striking the Dillard vehicle and immediately saw the flashing lights of the DPS patrol car after he heard the collision. Bum-stead further contends that even if he had time to get out of his vehicle to warn traffic, he could not have reasonably been expected to warn traffic from both directions. TEC and Bumstead also note that Richard Turner, the accident recon-structionist who testified on behalf of Dillard, stated that the requirements of the Texas Department of Transportation are that a trucker that has been involved in an accident has ten minutes to put out safety devices.

Joe Knight was following the Dillards’ vehicle that night. Knight testified that he was a retired law enforcement officer, having served with the Cockerell Hill Police Department, the San Augustine County Sheriffs Department, the City of Irving Police Department as a sergeant, and finally as police chief for the City of Seven Points. Knight testified that he arrived at the scene of the Brown-Dillard collision at approximately 10:17 p.m. Knight further stated that he had called 9-1-1 immediately upon arriving at the scene. Knight testified that as a law enforcement officer, he had worked numerous accident scenes. He further stated that he immediately activated the emergency flashers on his car, exited his vehicle, and began using a flashlight to direct traffic around the carcass of the dead cow and the Brown-Dillard collision. Knight stated that he was able to keep the traffic safely moving around the scene until about 10:26 p.m., at which time he made a second 9-1-1 call pleading for emergency personnel to come to the scene. Phone records admitted into evidence confirm the timing of Knight’s two 9-1-1 calls. Knight further testified that soon after his second 9-1-1 call, DPS Officer Jim Cleland arrived at the east side of the bridge. Cleland’s records indicate that he arrived at the scene at 10:25 p.m. after being notified of the accident at 10:20 p.m. Cle-land immediately took charge of the scene and later investigated the Brown-Dillard collision on behalf of the DPS. DPS Officer Richard Fulton later arrived on the west side of the bridge and interviewed Bumstead concerning his collision with the cow.

Fulton testified that he believed Bum-stead’s story that the second collision occurred as he was first exiting his truck was inconsistent with the facts. Further, Knight’s testimony directly contradicted Bumstead’s testimony that he immediately got out of his truck after parking it and, at that point, heard Brown’s car collide with the Dillards’ vehicle and saw the DPS vehicle with its lights flashing. Knight further stated that he passed the Arkansas Freightways truck with the two trailers at least four miles to the east of the Brown-Dillard collision. We conclude that the jury was entitled to believe the testimony of Cleland, Fulton, and Knight that Bum-stead’s recollection as to the timing of the Brown-Dillard collision was inaccurate.

TEC and Bumstead argue that causation is not established if the defendant’s conduct does no more than furnish the condition that makes the plaintiffs injury possible. Union Pump Co. v. Allbritton, 898 S.W.2d 773, 776 (Tex.1995). Although Union Pump was a products liability case, the court cites to an earlier supreme court case concerning causation that involved two collisions. See Union Pump, 898 S.W.2d at 776 (citing Bell v. Campbell, 434 S.W.2d 117 (Tex.1968)).

In Bell two automobiles had collided. See Bell, 434 S.W.2d at 118. A trailer attached to a vehicle in the first collision overturned and remained in the roadway. Id. A crowd gathered after the collision, and a person went down the highway from the scene with a flashlight to signal to oncoming traffic that its lane of travel was obstructed. Id. at 119. An intoxicated driver either ignored or did not see the warnings from the person with the flashlight and drove into the crowd, injuring three people. Id. The supreme court held that the drivers of the two vehicles in the first collision had not proximately caused the second collision between the intoxicated driver and the three men attempting to remove the trader from the road. Id. at 122-123. The court stated that “all forces involved in or generated by the first collision had come to rest, and no one was in any real or apparent danger therefrom.” Id. at 120.

In the case at hand, the forces generated by Bumstead’s collision with the cow were still continuing at the time Brown came upon the cow and vaulted into the Dillard pickup. Brown and the Dillards were in imminent danger from the remains of Bumstead’s collision with the cow. Even Bumstead recognized there was a danger with a cow’s carcass in the eastbound lane of the highway because he immediately radioed the approaching Arkansas Freightways trucker of its existence. We conclude that the jury could have determined that Bumstead’s failure to warn Brown about the cow’s carcass obstructing her lane was a cause in fact leading to Kenneth Dillard’s death and the injuries to Mary and Kimberly Dillard. The jury could have further determined Bumstead’s failure to warn was a substantial factor that caused the Brown-Dillard collision and that the harm would not have occurred had Bumstead successfully warned Brown of the dead cow in the roadway. Finally, the jury could have also reasonably determined that Bumstead should have anticipated further collisions because the record reflects that he did so anticipate with respect to the driver of the Arkansas Freightways truck. Therefore, we hold there was both legally and factually sufficient evidence to establish all of the elements of negligence attributed to TEC and Bumstead. TEC and Bumstead’s third issue is overruled.

Spoliation Presumption

In their first issue, TEC and Bumstead contend that the trial court erred when it submitted the following instruction to the jury:

You are instructed that if there is evidence that is pertinent to the issues in this cause, which was in the exclusive possession and control of a party and which cannot be produced, and its disappearance or non-production has not been satisfactorily explained, then you may consider that such evidence contained information adverse to the position taken by the party who was in the possession.

The loss or destruction of evidence may seriously impair a party’s ability to present its case. Wal-Mart Stores, Inc. v. Johnson, 106 S.W.3d 718, 721 (Tex.2003). A spoliation instruction is an instruction given to the jury outlining permissible inferences they may make against a party who has lost, altered, or destroyed evidence. Brewer v. Dowling, 862 S.W.2d 156, 159 (Tex.App.-Fort Worth 1993, writ denied). A party who has deliberately destroyed evidence is presumed to have done so because the evidence was unfavorable to its case. Johnson, 106 S.W.3d at 721. A trial judge has broad discretion in determining whether to provide a jury with a spoliation presumption instruction. See Trevino v. Ortega, 969 S.W.2d 950, 953 (Tex.1998); see also Johnson, 106 S.W.3d at 721 (a trial judge should have discretion to fashion an appropriate remedy to restore the parties to a rough approximation of their positions if all evidence were available).

In the instant case, TEC admitted that it had destroyed Bumstead’s logbook and all of the other documents regarding his trip events of May 27, 1996. William Gee, the dispatcher for TEC, stated that it was the policy of TEC to keep these records for only six months and then destroy them. Gee further testified that he was the individual who had thrown away Bumstead’s logbook and the other documents pertaining to his trip of May 27. He stated that he did this as part of TEC’s normal operating procedure.

Dillard contends that the logbooks would have been helpful in indicating exactly how fast Bumstead had been driving during the 120 miles of this trip before he hit the cow. Dillard also contends that the destroyed documents could have shown that Dillard’s trailer was overloaded and, therefore, considering the amount of his load, his speed was excessive.

Before any failure to produce material evidence may be viewed as discovery abuse, the opposing party must establish that the nonproducing party had a duty to preserve the evidence in question. Id. at 722. There must be a sufficient foundational showing that the party who destroyed the evidence had notice both of the potential claim and of the evidence’s potential relevance thereto. Id. An objective test for anticipation of litigation is whether a reasonable person would conclude from the severity of the accident and other circumstances surrounding it that there was a substantial chance for litigation. Id.

Dillard established that one of her attorneys, Roland Brown, wrote TEC a letter dated October 24, 1996. In his letter, Brown notified TEC that he had been employed to represent Mary Dillard and her daughter in connection with them injuries and the death of Kenneth Dillard that arose out of the Bumstead collision with the cow in Cherokee County on May 27, 1996. TEC acknowledged the receipt of Brown’s letter in a letter to Brown dated October 30, 1996 from D.L. Lively, who identified himself as a manager with TEC. In his letter, Lively contested the fact that a TEC vehicle was involved in the specific collision that led to Kenneth Dillard’s death and the injuries of Mary and Kimberly Dillard. It is uncontested that the correspondence between Brown and Lively occurred within six months of the May 27 collisions. Thus, the record before the trial judge indicated that TEC had knowledge of Dillard’s claim and understood its severity before Gee destroyed Bumstead’s logbook and other documents. We hold that the trial judge did not abuse his discretion in instructing the jury on the spoliation presumption. TEC and Bumstead’s first issue is overruled.

Conclusion

Having overruled TEC and Bumstead’s first, second, and third issues, we affirm the trial court’s judgment.

      . The bridge is approximately 2,000 feet from the crest of the hill.

      . The Texas Supreme Court in Dillard v. Texas Electric Co-op., 157 S.W.3d 429 (Tex.2005) held that TEC and Bumstead were not entitled to a sole proximate cause jury instruction in addition to an unavoidable accident instruction. The matter was thus remanded to this court to consider the remaining three issues that TEC and Bumstead raised in their initial appeal.

      . The boldfaced portion of Cleland's answer is the portion of his testimony the trial court refused to admit.