author: Opinion by: STEVEN C. HILBIG, Justice.

text:
    In the Interest of S.M.D., a Child.
    No. 04-08-00602-CV.
    Court of Appeals of Texas, San Antonio.
    Feb. 24, 2010.
    Rehearing Overruled June 2, 2010.

      Jo Chris G. Lopez, Robinson C. Ramsey, Langley & Banack, Inc., James R. Bass, Law Offices of James R. Bass, Inc., San Antonio, TX, for Appellant.
    Jay R. Brandon, Law Office of Jay Brandon, H.E. Mendez, H.E. Mendez, Esq., San Antonio, TX, for Appellee.
    Sitting: CATHERINE STONE, Chief Justice, PHYLIS J. SPEEDLIN, Justice, STEVEN C. HILBIG, Justice.
   OPINION

Opinion by: STEVEN C. HILBIG, Justice.

The father of S.M.D. appeals the trial court’s order appointing the child’s maternal grandmother a possessory conservator and imposing a geographic restriction on S.M.D.’s residence. We hold the grandmother did not have standing to seek con-servatorship of S.M.D. and the trial court should not have imposed a geographic restriction.

PROCEDURAL BACKGROUND

S.M.D. was born to Ed and Nonnie on July 6, 2005. Ed and Nonnie were never married, and them relationship became contentious during the pregnancy and later paternity proceedings. In October 2006, the trial court signed an order designating Ed and Nonnie joint managing conservators, and gave Nonnie the exclusive right to establish S.M.D.’s primary residence. A few weeks after the final order was signed, and before Ed had exercised any possession of S.M.D., S.M.D. and Non-nie traveled to Colorado where, on November 19, 2006, Nonnie disappeared. Soon thereafter, Nonnie’s mother, Candice, took S.M.D. to Candice’s home in California.

In December 2006, Ed filed a motion to modify, asking to be appointed S.M.D.’s sole managing conservator. In January 2007, Candice filed a petition in intervention, seeking to be appointed joint managing conservator with the exclusive right to determine S.M.D.’s residence and requesting temporary orders. Ed contested the intervention on the ground Candice lacked standing to seek conservatorship of S.M.D. After a hearing, the trial court denied the motion contesting the intervention and named Candice temporary sole managing conservator and Ed temporary possessory conservator. Candice subsequently amended her pleadings, seeking either to be named sole managing conservator or joint managing conservator of S.M.D., or to have grandparental access to and possession of her. Ed unsuccessfully challenged Candice’s standing to seek conser-vatorship of S.M.D. several more times during the subsequent trial court proceedings.

The case was ultimately tried to a jury, which found (1) Ed should be appointed sole managing conservator of S.M.D.; (2) S.M.D.’s residence should be restricted to an area within fifty miles of the Bexar County boundary; (3) S.M.D.’s physical health or emotional well being would be significantly impaired if Candice were denied reasonable access to or possession of S.M.D.; (4) Candice should be named a possessory conservator; and (5) the amount of attorney’s fees reasonably and necessarily incurred by each party. The coui’t signed its final order on July 8, 2008, finding the material allegations in Ed’s petition to be true. The court removed Nonnie and Ed as joint managing conservators, appointed Ed sole managing conservator, and appointed Candice a nonpar-ent possessory conservator. Ed was given the exclusive right to designate S.M.D.’s primary residence within the geographic area consisting of Bexar County and extending 50 miles from its boundaries. The court granted Candice standard possession, and awarded Ed his attorney’s fees in the amount found by the jury.

Ed timely filed a notice of appeal. On appeal, he argues (1) Candice did not have standing to seek any of the relief she sought or ultimately obtained in this suit; (2) Candice is not entitled to possessory conservatorship, a standard possession order, or some of the rights granted her in the final order; (3) the trial court abused its discretion by imposing a geographic restriction on S.M.D.’s primary residence; (4) to the extent the Texas Family Code confers standing on Candice to intervene to seek conservatorship, possession, or access, without a showing that Ed is an unfit parent, it violates Ed’s rights to due process; and (5) the trial court’s application of various provisions of the Family Code to grant Candice possessory conservatorship, grant her certain parental rights, and impose a geographic restriction on him, “based solely on the best-interest standard,” violates due process and Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000).

Issues Raised by Candice

Although Candice did not file a notice of appeal, she argues two “counterpoints for just cause” in her appellee’s brief: the jury’s finding that Ed should be sole managing conservator is “contrary to the great weight and preponderance of the evidence,” and the trial court abused its discretion in awarding Ed his attorney’s fees.

Rule 25.1(c) of the Texas Rules of Appellate Procedure requires a party seeking to alter the trial court’s judgment to file a notice of appeal. An “appellate court may not grant a party who does not file a notice of appeal more favorable relief than did the trial court except for just cause.” Tex. R.App. P. 25.1(c). The rule does not address what circumstances constitute “just cause,” and no standard has been developed in the case law. See Pettus v. Pettus, 237 S.W.3d 405, 422 (Tex.App.-Fort Worth 2007, pet. denied). Nevertheless, most courts that have addressed the issue suggest the threshold showing that must be made is just cause for failing to file a notice of appeal. See, e.g., Wagner & Brawn, Ltd. v. Horwood, 58 S.W.3d 732, 737 -738 (Tex.2001) (rejecting argument that lack of Supreme Court precedent at time notice of appeal was due was just cause for not filing notice of appeal because party’s summary judgment motion acknowledged courts of appeals were divided on the issue); Dwairy v. Lopez, 243 S.W.3d 710, 714 (Tex.App.-San Antonio 2007, no pet.) (holding no just cause existed to review cross-issue because party failed to bring complaint to trial court’s attention in post-judgment motion and had 105 days to file notice of appeal, but failed to do so); Boulle v. Boulle, 160 S.W.3d 167, 176 (Tex.App.-Dallas 2005, pet. denied) (declining to consider cross-point because party did not show just cause that would excuse his failure to file notice of appeal); City of Freeport v. Vandergrifft, 26 S.W.3d 680, 683 (Tex.App.-Corpus Christi 2000, pet. denied) (holding court would not consider cross-point because party had “not attempted to show ‘just cause’ for overlooking her failure to file a notice of appeal”). However, in Darya, Inc. v. Christian, 251 S.W.3d 227 (Tex.App.-Dallas 2008, no pet.), the court looked to the merits of the cross-point to decide if there was just cause to consider it, without regard to the reasons for failing to file a notice of appeal. In Darya, the court held there was just cause to reverse an award of attorney’s fees imposed as sanctions where there was a complete absence of evidence as to the amount of fees reasonably incurred as a result of the appellant’s conduct. Id. at 232-33.

Candice argues the jury and the trial court incorrectly decided the issues of managing conservatorship and attorney’s fees, and that justice requires this court to correct the decisions. Candice has not offered any explanation or cause for failing to file a notice of appeal. Nor did she file a post-judgment motion raising her complaints in the trial court, as was required to preserve her complaint about the factual insufficiency of the evidence to support the jury’s finding on managing conservator-ship. See Tex.R. Civ. P. 324(b)(2). Unlike Darya, the issues Candice asks the court to review “for just cause” involve the factual sufficiency of the evidence to support a jury finding and the exercise of the trial court’s discretion to award fees, where the trial court had the discretion to do so and the record contains evidence supporting the award. We therefore hold Candice has not shown just cause for granting her more favorable relief than she received in the trial court in the absence of a notice of appeal, and we decline to consider her issues.

CandiCe’s Standing to Seek Conservatorship

Ed argues Candice did not have standing to intervene in the action to seek managing or possessory conservatorship of S.M.D. We agree.

A party seeking conservatorship of a child must have standing to seek such relief. In re S.S.J.-J., 153 S.W.3d 132, 134 (Tex.App.-San Antonio 2004, no pet.). “Standing is implicit in the concept of subject matter jurisdiction.” Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex.1993). Because “[s]ubject matter jurisdiction is essential to the authority of a court to decide a case,” a party’s lack of standing deprives the court of subject matter jurisdiction and renders subsequent trial court action void. Id.; In re Smith, 260 S.W.3d 568, 572 (Tex.App.Houston [14th Dist.] 2008, orig. proceeding).

When standing has been conferred by statute, the statute itself serves as the proper framework for a standing analysis. In re Sullivan, 157 S.W.3d 911, 915 (Tex.App.-Houston [14th Dist.] 2005, orig. proceeding [mand. denied]); Smith, 260 S.W.3d at 572. In the context of a suit affecting the parent-child relationship, standing is governed by the Texas Family Code, and “[t]he party seeking relief must allege and establish standing within the parameters of the language used in the statute.” In re H.G., 267 S.W.3d 120, 124 (Tex.App.-San Antonio 2008, pet. denied). When standing has been sufficiently alleged in the pleadings, and the jurisdictional challenge attacks the existence of jurisdictional facts, the trial court considers the evidence submitted by the parties to resolve the jurisdictional issues raised. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex.2000). The burden of proof on the issue of standing is on the party asserting standing. In re Pringle, 862 S.W.2d 722, 725 (Tex.App.-Tyler 1993, no writ). In a family law case, when the petitioner is statutorily required to establish standing with “satisfactory proof,” the evidentiary standard is a preponderance of the evidence. In re A.M.S., 277 S.W.3d 92, 96 (Tex.App.-Texarkana 2009, no pet.); Von Behren v. Von Behren, 800 S.W.2d 919, 921 (Tex.App.-San Antonio 1990, writ denied). The petitioner must show the facts establishing standing existed at the time suit was filed in the trial court. M.D. Anderson Cancer Ctr. v. Novak, 52 S.W.3d 704, 708 (Tex.2001); In re Vogel, 261 S.W.3d 917, 921 (Tex.App.-Houston [14th Dist.] 2008, orig. proceeding). If the petitioner fails to meet his burden, the trial court must dismiss the suit. In re M.T.C., 299 S.W.3d 474, 479-480 (Tex.App.-Texarkana 2009, no pet.).

A party’s standing to seek relief is a question of law we review de novo. Tex. Dep’t of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 646 (Tex.2004); S.S.J.-J., 153 S.W.3d at 134. When, as in this case, the trial court does not make separate findings of fact and conclusions of law, we imply the findings necessary to support the judgment. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990). We review the entire record to determine if the trial court’s implied findings are supported by any evidence. Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 853 (Tex.2000); Vogel, 261 S.W.3d at 921-22.

Standing to file a petition seeking con-servatorship of a child is governed by sections 102.003 and 102.004 of the Texas Family Code. Candice does not contend she had standing under any of the provisions of section 102.003, and relies solely on section 102.004. That section provides:

§ 102.004. Standing for Grandparent or Other Person
(a) In addition to the general standing to file suit provided by Section 102.003, a grandparent, or another relative of the child related within the third degree by consanguinity, may file an original suit requesting managing conservatorship if there is satisfactory proof to the court that:
(1) the order requested is necessary because the child’s present circumstances would significantly impair the child’s physical health or emotional development; or
(2) both parents, the surviving parent, or the managing conservator or custodian either filed the petition or consented to the suit.
(b) An original suit requesting possesso-ry conservatorship may not be filed by a grandparent or other person. However, the court may grant a grandparent or other, person deemed by the court to have had substantial past contact with the child leave to intervene in a pending suit filed by a person authorized to do so under this subchapter if there is satisfactory proof to the court that appointment of a parent as a sole managing conservator or both parents as joint managing conservators would significantly impair the child’s physical health or emotional development.
(c) Possession of or access to a child by a grandparent is governed by the standards established by Chapter 153.

Tex. Fam.’Code AnN. § 102.004 (Vernon 2008).

Section 102.004(a)(2) — Consent

At various times in the trial court and during oral argument on appeal, Candice argued that a special power of attorney Nonnie executed in connection with her military service established Candice’s standing to file the petition in intervention. The special power of attorney authorized Candice to act on Nonnie’s behalf in regards to the care of S.M.D. Candice argued the power of attorney constitutes Nonnie’s consent to Candice’s petition in intervention within the meaning of section 102.004(a)(2). However, even if Nonnie effectively consented to the petition in intervention, standing under section 102.004(a)(2) requires the consent or join-der in the petition of both parents. It is undisputed that Ed neither joined the petition in intervention nor consented to it. See Tex. Fam.Code Ann. § 102.004(a)(2) (requiring that both parents either file the petition or consent to the suit); In re Cervantes, 300 S.W.3d 865, 875 (Tex.App.-Waco 2009, orig. proceeding) (holding section 102.004(a)(2) “plainly requires the consent of ‘both parents.’ ”); Interest of A.M.S., 277 S.W.3d at 97 (aunt’s standing to file suit seeking conservatorship established by both parents’ representations to court that they agreed to aunt’s seeking appointment as managing conservator). Candice did not establish standing under section 102.004(a)(2).

Section 102.004(b) — Significant Impairment of Child

Candice relies primarily on section 102.004(b) of the Family Code, which authorizes the trial court to allow a grandparent to intervene in a pending suit to seek conservatorship under certain circumstances. See Tex. Fam.Code Ann. 102.004(b). If Candice met her burden under section 102.004(b), the trial court had discretion to allow her to intervene and seek both managing and possessory conservatorship. See In re Hidalgo, 938 S.W.2d 492, 496 (Tex.App.-Texarkana 1996, no writ).

Candice argues she bears a “relaxed burden” on standing because she sought to intervene in a pending suit rather than file an original suit. This argument is apparently based on the version of section 102.004(b) in effect before June 2005. In suits filed before June 18, 2005, a grandparent could establish standing to intervene in a pending suit to seek conservator-ship merely by demonstrating she had substantial past contact with the child. See Act of April 6, 1995, 74th Leg., R.S., ch. 20, § 1, 1995 Tex. Gen. Laws 113, 125 (amended 2005) (current version at Tex. Fam.Code ANN. § 102.004(b) (Vernon 2008)). A number of appellate opinions involving suits filed before the 2005 amendment refer to this as a “relaxed” standard for intervention and discuss the reasons for such. See, e.g., Whitworth v. Whitworth, 222 S.W.3d 616, 621 (Tex.App.Houston [1st Dist.] 2007, no pet.); Chavez v. Chavez, 148 S.W.3d 449, 455-56 (Tex.App.-El Paso, 2004, no pet.).

In 2005, the Texas Legislature significantly increased a grandparent’s burden to show standing under section 102.004(b) to intervene in a pending suit to seek conser-vatorship by adding a requirement that the grandparent show:

satisfactory proof to the court that appointment of a parent as a sole managing conservator or both parents as joint managing conservators would significantly impair the child’s physical health or emotional development.

Act of May 29, 2005, 79th Leg., R.S., ch. 916, § 3 2005 Tex. Gen. Laws 3148, 3149 (effective June 18, 2005) (current version at Tex. Fam.Code Ann. § 102.004(b) (Vernon 2008)). Thus a grandparent’s burden to show standing to intervene in a pending action is no longer “relaxed.” In fact, the grandparent must make the same showing to establish standing as a nonparent must make to overcome the presumption that a parent is to be named managing conservator. See Tex. Fam.Code Ann. § 153.131(Vernon 2008) (presuming that appointment of parent(s) as managing conservator(s) is in best interest of child and providing that presumption may be overcome by showing appointment of parent(s) as managing conservator(s) “would significantly impair the child’s physical health or emotional development”). Although section 153.131 concerns the merits of a custody dispute and section 102.004(b) concerns standing, we find the caselaw construing section 153.131 instructive because the legislature used the identical language in its 2005 amendment to the standing section of the Family Code. See In re N.B.B., No. 04-06-00342-CV, 2007 WL 3171267, at *6 (Tex.App.-San Antonio Oct. 31, 2007, no pet.) (mem. op.) (recognizing that proof required for nonparent to show standing to intervene under section 102.004(b) is same as that required for nonparent to overcome parental presumption in section 153.131); see also Robertson v. Odom, 296 S.W.3d 151, 157 (Tex.App.-Houston [14th Dist.] 2009, no pet.) (holding that when construing a statutory phrase, court may consider the meaning assigned to the term elsewhere in the act or in another act of similar nature); Sheshunoff v. Sheshunoff, 172 S.W.3d 686, 692 (Tex.App.-Austin 2005, pet. denied) (court should give same meaning to same terms used in other statutory provisions on the same or similar subjects unless something indicates different meaning was intended); L & M-Surco Mfg., Inc. v. Winn Tile Co., 580 S.W.2d 920, 926 (Tex.Civ.App.-Tyler 1979, writ dism’d) (stating “this rule applies with particular force where the meaning of a word as used in one act is clear or has been judicially determined, and the same word is subsequently used in another act pertaining to the same subject”).

In order to show “that appointment of the parent as managing conservator would significantly impair the child, either physically or emotionally,” the non-parent must “offer evidence of specific actions or omissions of the parent that demonstrate an award of custody to the parent would result in physical or emotional harm to the child.” Lewelling v. Lewelling, 796 S.W.2d 164, 167 (Tex.1990) (construing section 153.131 of the Family Code). To meet this burden, the nonparent must present evidence of “specific, identifiable behavior or conduct of the parent,” as shown by “specific acts or omissions,” and evidence that such acts or omissions “will probably cause that harm.” Critz v. Critz, 297 S.W.3d 464, 474 (Tex.App.-Fort Worth 2009, no pet.). The evidence must support a logical inference that the specific, identifiable behavior or conduct will probably result in the child being emotionally impaired or physically harmed. Whitworth, 222 S.W.3d at 623. The link “may not be based on evidence which merely raises a surmise or speculation of possible harm.” Id.; In re M.W., 959 S.W.2d 661, 665 (Tex.App.-Tyler 1997, writ denied). The non-parent’s burden is not met by evidence that shows she would be a better custodian of the child or that she has a strong and on-going relationship with the child. See Critz, 297 S.W.3d at 474-75; M.J.G., 248 S.W.3d at 760. Further, evidence of past misconduct alone is insufficient. Critz, 297 S.W.3d at 475. “If the parent is presently a suitable person to have custody, the fact that there was a time in the past when the parent would not have been a proper person to have such custody is not controlling.” May v. May, 829 S.W.2d 373, 377 (Tex.App.-Corpus Christi 1992, writ denied).

Because the trial court did not make any express findings of fact, we imply a finding that when Candice filed her petition in intervention in January 2007, the appointment of Ed as S.M.D.’s sole managing conservator would significantly impair S.M.D.’s physical health or emotional development. Ed argues there is no evidence to support this finding. Candice argues the trial court’s implied finding is supported by evidence that: when the petition in intervention was filed, Ed had never held S.M.D. and had no relationship with her; Ed’s conduct during Nonnie’s pregnancy and the paternity proceedings demonstrated hostility towards Nonnie and the child; Ed had no experience or ability to care for the child; Ed had not financially supported S.M.D.; and in the two months between Nonnie’s disappearance and the filing of the petition for intervention, S.M.D. and Candice had developed a very close relationship and S.M.D. would suffer harm if that bond were broken. We will review the record to determine whether there is any evidence to support the implied finding that in January 2007, appointing Ed as S.M.D.’s sole managing conservator would have significantly impaired her physical health or emotional development. Our review of the record includes: the January 18, 2007 hearing on temporary orders and Ed’s first challenge to Candice’s standing; the reporters records from the paternity action that were introduced into evidence at the January 18 hearing — the March 15, 2006 hearing on temporary orders and the September 21, 2006 final hearing; and the remainder of the record, including the evidence introduced at trial, keeping in mind that Candice’s standing must be shown as of January 11, 2007, when she filed her original petition in intervention.

The Evidence

Nonnie and Ed met at a dance lesson in October 2004. Nonnie was a nurse in the Ah' Force and Ed was twenty years older and a semi-retired self-employed rancher who managed family properties. Although Nonnie had a boyfriend in Denver and visited him regularly, Nonnie and Ed soon started dating. In November 2004, after going out just several times, Nonnie told Ed she was pregnant. Their relationship throughout the pregnancy was- “rocky.” According to Nonnie, Ed did not believe the child was his and urged her to terminate the pregnancy. According to Ed, Nonnie had told him she was unable to conceive because of a previous accident. As soon as she learned she was pregnant, Nonnie became adamant that Ed marry her and repeatedly issued ultimatums, saying that if he did not marry her, she would take the baby to Colorado and Ed would never see the child. Nonnie also told him that if he did not marry her, his child would be “a bastard.” The two attempted several times to forge a relationship, and Nonnie even lived with Ed a short time during her pregnancy. However, they “separated” permanently in June 2005, about a month before S.M.D. was born. According to Ed, the last time the two had a conversation, Nonnie had broken into his home. She verbally abused him and hit him with her fists. Ed called the police, who escorted Nonnie from the property and told her charges would be filed if she returned. S.M.D. was born July 6, 2005. Nonnie sent birth announcements to Ed and members of his family. Many of the announcements were returned unopened. Ed ripped the announcement he received in half, wrote, “it’s a bastard child” on the back, and returned it to Nonnie.

A paternity action was filed in August 2005. At the temporary orders hearing, held in March 2006, Ed testified he wanted to raise his daughter. However, he conceded he had not made any effort to see S.M.D. He testified this was because he could not communicate with Nonnie and could not “deal with” her. Ed testified Nonnie was unable to exercise any self control and it would not be in S.M.D.’s best interest for Ed and Nonnie to have regular dealings with each other. At the conclusion of the hearing, the trial court set child support at $900.00 a month and granted Ed standard visitation. He further ordered that if Ed exercised his visitation, the amount of support would be reduced to $600.00. After the court ruled, Ed inquired whether visitation could be facilitated by a third party, and the court indicated that was possible. Although' the trial court instructed the attorneys to prepare an order reflecting his rulings, no temporary order was ever signed. However, at a subsequent hearing, the trial court ordered the parties to set up visitation through Kid’s Exchange. Ed went to Kid’s Exchange, completed the Intake, paid the fee, and signed a contract. He anticipated having three weekend visitation days before the final hearing. However, Nonnie did not complete an intake at Kid’s Exchange, thus preventing any visitation. Therefore, at the time of the final hearing, Ed had still not spent any time with S.M.D.

The final hearing in the paternity action took place on September 21, 2006. Ed testified he wanted a role in raising his daughter and asked the court to allow him to have custody every other week. He testified he wanted S.M.D. to spend time with his family. He told the court he has a large family with many nieces and nephews. He testified he spent a significant amount of time with the young children in his family and knew how to care for them. Ed also testified he had been married previously, and helped raise his stepson. Ed explained that he had tried to visit with S.M.D. after the trial court ordered visitation facilitated through Kid’s Exchange, but was unable to because Nonnie did not do her part. He expressed his belief that, regardless of what the court ordered, Non-nie was not going to allow him to see the child.

Nonnie testified she had not understood she was required to do an intake at Kid’s Exchange before Ed could exercise his visitation. She testified she believed Ed should be awarded standard visitation “[i]f ... his intent is actually to be a father.” However, Nonnie stated she was somewhat concerned that Ed’s motive for wanting to see S.M.D. was simply to reduce the amount of child support he would be required to pay. She was also concerned that Ed might show to S.M.D. some of the anger and resentment he felt towards Nonnie. Nonnie also testified that before Ed exercised visitation, she wanted to make sure his house was safe and to make sure Ed knew how to change a diaper and to provide proper care.

At the conclusion of the hearing, the trial court named Nonnie and Ed joint managing conservators of S.M.D., with Nonnie having the right to designate S.M.D.’s primary residence and granted Ed standard visitation. However, because Ed did not yet have a relationship with the child, the court ordered twelve hours visitation at Kid’s Exchange before starting standard visitation. The court set child support at $900.00 a month and made an arrearage award. After the hearing, but before the final order was signed, Nonnie completed the Kid’s Exchange intake. However, when Kid’s Exchange personnel contacted Ed about completing additional intake for supervised visitation, Ed balked at having the visits supervised and did not complete the paperwork. The final order, signed October 10, 2006, required the twelve hours of visitation at Kid’s Exchange be supervised.

The following month, Nonnie took S.M.D. to Colorado, and Nonnie disappeared on November 19, 2006. Ed learned of the disappearance when someone contacted him to find out if he had heard from Nonnie. On November 21, Ed called Nonnie’s bx-other in Colorado, expressed concern for S.M.D., and indicated he wanted to bring her to San Antonio. Ed testified he later spoke with Candice’s husband, Kevin, who told Ed to stay in San Antonio and said he and Candice would bi'ing S.M.D. to San Antonio in a few days. After a few days had passed and they had not arrived in San Antonio, Ed called and spoke to Kevin again. Ed testified Kevin told him not to worry, that S.M.D. was fine, that he and Candice wanted to work with him, and they would bring S.M.D. to San Antonio. According to Kevin, he told Ed that it was too eai'ly to discuss what would happen to S.M.D., and that they would “eventually” come to San Antonio. Kevin testified they brought S.M.D. for a visit to San Antonio during the Christmas holidays, but they did not contact Ed. Ed did not hear from Non-nie’s family, and eventually learned Candice and Kevin had taken S.M.D. to then-home in California. Ed filed his motion to modify conservatorship on December 29, 2006. Candice filed her petition in intervention on January 11, 2007.

The trial court heard Candice’s motion for temporary orders and Ed’s contest to the intervention on January 18, 2007. S.M.D. was then 18 months old. Ed testified he had wanted a relationship with his daughter and, with Nonnie missing, he believed he should raise S.M.D. He testified he had never held S.M.D. and explained the difficulties he had encountered in trying to have visitation with S.M.D. during the paternity proceedings. After the final order was entered, he began to think it simply would not be workable because of “the way [Nonnie] is and the way she had been towards me.” Ed testified he had been making the child support payments required by the final order.

Ed testified he lived alone in a house he was renovating. He had prepared a room for S.M.D. He testified he had not yet completed the kitchen, but that he and S.M.D. could live in his mother’s house until it was done. Ed testified he had experience with young children. He has a large extended family with many young children who he spent a significant amount of time with. He also helped to raise his stepson from the time he was three years old. Finally, Ed had recently taken parenting classes to further prepare him to care for S.M.D. Ed’s grown stepson testified at the hearing that Ed had been an “excellent” father to him and that they continued to have a good relationship. There was nothing in his experience with Ed that would give him concern about Ed being S.M.D.’s primary caregiver. Ed’s mother and two of his sisters also testified Ed was very good with young children and about the extensive familial support he would have in raising S.M.D. Finally, Ed testified he had no criminal history, no history of mental illness, and no problem with drugs or alcohol.

At the time of the January 2007 hearing, Candice had had physical possession of S.M.D. for two months. She wanted to continue to be S.M.D.’s primary caregiver, but stated she did not have any reservations about Ed having supervised access to S.M.D. She'testified that Nonnie thought highly of Ed and his family and wanted them in S.M.D.’s life. Candice testified that before Ed filed the motion to modify, she had not intended to bring S.M.D. to visit Ed until March or April. She testified she was concerned about S.M.D.’s emotional well-being if Ed. became her sole managing conservator because Ed .was a stranger to S.M.D.

In a later deposition, Candice testified she believed Ed’s dislike of Nonnie and the hostility he displayed during the pregnancy and paternity case demonstrate he does not have any compassion, does not have the capacity to love S.M.D., and that S.M.D. would be emotionally harmed if Ed raised her. Candice also- believed Ed had a violent temper that posed a risk to S.M.D.’s physical health. However, the only evidence she cites as support for this belief is the affidavit she filed with her petition in intervention, in which she stated that Nonnie had told her that at a court appearance in the paternity case, Ed “was so extremely angry and out of control that the- Bailiff insisted that he accompany [Nonnie] and her attorney to their vehicles.” This allegation is not supported by either of the hearing records from the paternity case, and there was no testimony from any source at any of the hearings or at the trial of this case to substantiate the hearsay. Candice did no.t - offer the affidavit or any other evidence at any of the hearings or the trial to support the contention that Ed is violent or had an uncontrollable temper.

Candice contends she and S.M.D. developed a strong bond during the two months she had been S.M.D.’s caregiver. She believed S.M.D. would be harmed if placed in January 2007 with Ed, someone S.M.D. did not know. She relies heavily on the trial testimony of two psychologists — Dr: Dina Trevino, who was appointed by the trial court in February 2007 to perform a social study and custody evaluation, and Dr. Joann Murphey, a clinical psychologist retained by Candice and her • husband to counsel them on parenting issues. By the time the psychologists testified at trial, Candice had been S.M.D.’s temporary sole managing conservator and primary caregiver for over a year. Both psychologists testified that by that time S.M.D. and Candice had formed a significant bond and it would be harmful to S.M.D. if she were not allowed continued access to Candice. However, Dr. Trevino testified she had no concerns about Ed being a fit parent, and recommended Ed be appointed S.M.D.’s sole managing conservator. Dr. Murphey testified she was not aware of any conduct on the part of Ed that would possibly cause harm to S.M.D.

Both psychologists testified S.M.D. suffered some psychological trauma when her primary caregiver disappeared in November 2006. Dr. Trevino testified that in January 2007, it was “better” to place S.M.D. with Candice because they had previous contacts. Dr. Trevino also testified circumstances for S.M.D. would have been “even better” had Candice allowed Ed to spend time with S.M.D. after Nonnie disappeared. However, neither psychologist testified S.M.D. would have suffered physical harm or that her emotional development would have been significantly impaired had Ed been named S.M.D.’s sole managing conservator in January 2007.

Discussion

Candice attempts to paint a picture of Ed in January 2007 as an angry, violent man, who was hostile to S.M.D., who refused to have anything to do with her, who had no idea how to care for a child, and who would significantly impair S.M.D.’s physical health or emotional development were he to have custody of her. This picture is not borne out by the record. Notwithstanding Ed’s early hostility toward the idea of having a child, Ed actively sought court-ordered visitation during the paternity proceedings. He argued for a geographic restriction on S.M.D.’s residence because of his fear that Nonnie would take S.M.D. permanently to Denver and he would never see her. No evidence was presented, either in the paternity proceedings or in this case, of any conduct, behaviors, or habits of Ed that would probably cause physical or emotional harm to a child. To the contrary, the evidence demonstrated Ed had previously raised a child with whom he maintained a good relationship, he spent a significant amount of time around young children and knew how to care for them, and had substantial family support.

The judge who heard the paternity case found Ed wanted a relationship with his daughter and was capable of caring for a child, and named him a joint managing conservator of S.M.D. Four months later, Candice contended that naming Ed sole managing conservator would significantly impair' S.M.D.’s physical health or emotional development. However, Candice fails to point to evidence of “specific, identifiable behavior or conduct” of Ed after his appointment as joint managing conservator that would “probably cause that harm.” See Critz, 297 S.W.3d at 474. Candice’s argument in essence is reduced to two facts: in January 2007, Ed had never held S.M.D. and Candice had formed a relationship with S.M.D. in the two months after Nonnie disappeared. However, Candice was required to provide evidence to support a logical inference that naming Ed sole managing conservator in light of these facts would significantly impair S.M.D.’s physical health or emotional development. See Whitworth, 222 S.W.3d at 623.

Candice relies on several cases in which a parent’s lack of contact with the child was considered in determining whether a non-parent had standing to seek conserva-torship. However, in each of the cases she cites, not only had the parent had little or no contact with the child, but there was also evidence of specific, identifiable conduct that would probably cause harm to the child. See In re Vogel, 261 S.W.3d at 924-25 (grandparent established standing to seek conservatorship with proof father is a long-term alcoholic, father conceded he could not provide financially for the child, father had removed child from mother’s funeral and immediately taken child to a lawyer’s office and then left him in the care of non-relatives); In re N.B.B., 2007 WL 3171267, at *l-*5 (nonparent established standing to seek conservatorship under section 102.004(b) after children’s mother died with evidence father had not received training in care for disabled child, father had six children by four different mothers and was behind on child support payments, father had been physically abusive to mother when children were young, had recently hit disabled child, and other child stated she was afraid of him); In re Pharis, No. 12-06-00350-CV, 2006 WL 3735107, at *2 (Tex.App.-Tyler Dec. 20, 2006, orig. proceeding) (mem. op.) (grandparent demonstrated standing to seek con-servatorship of week-old child under 102.004(a)(1) with evidence mother expressed no concern about the child’s medical condition when released from hospital after birth, disregarded instructions she received at hospital in order to be with her boyfriend, and left child with someone who was unable to care for the child). There is no such evidence in this case.

Nor is the fact that Candice had developed a relationship with S.M.D. during the two months after Nonnie’s disappearance dispositive in the absence of evidence that S.M.D.’s emotional development would be significantly impaired if she did not continue living with Candice. See In re M.J.G., 248 S.W.3d 753, 760 (Tex.App.-Fort Worth, 2008). Although Dr. Trevino testified Candice was the “better” choice as a temporary conservator in January 2007, Candice’s burden was not met by evidence she “would be a better custodian of the child.” See Lewelling, 796 S.W.2d at 167. Neither of the psychologists testified S.M.D. would have been significantly impaired had Ed been named her sole managing conservator in January 2007. Candice argues she was not required to produce such evidence because it is “common sense” that harm to S.M.D. would follow. We disagree and hold that on the facts disclosed in this record, Candice raised no more than a surmise or speculation of possible harm.

We hold there is no evidence in the record to support the trial court’s implied finding that appointment of Ed to be S.M.D.’s sole managing conservator in January 2007 would have substantially impaired S.M.D.’s physical health or emotional development. Candice failed to meet her burden to show standing under section 102.004 of the Family Code and the trial court should have dismissed her pleadings seeking conservatorship.

Possession and Access

Candice pleaded alternatively for grandparental possession and access of S.M.D. pursuant to section 153.432 of the Family Code. See Tex. Fam.Code Ann. art. 153.432 (Vernon Supp. 2009). As a biological grandparent of S.M.D., Candice had standing to seek possession under the statute. See Smith, 260 S.W.3d at 572. However, a court order granting possession of or access to a child by a grandparent requires proof that .“the grandparent requesting possession of or access to the child is a parent of a parent of the child and that parent of the child: (A) has been incarcerated in jail or prison during the three-month period preceding the filing of the petition; (B) has been found by a court to be incompetent; (C) is dead; or (D) does not have actual or court-ordered possession of or access to the child.” Tex. Fam.Code Ann. art. 153.433(b) (Vernon Supp. 2009). Candice concedes she did not establish a right to possession and access under the statute. Accordingly, the trial court’s order awarding Candice standard possession of S.M.D. cannot be upheld under section 153.432.

Residence Restmction

Ed also seeks reversal of the trial court’s order restricting S.M.D.’s primary residence to an area within fifty miles of Bexar County. Ed argues the trial court is without authority to impose a geographic residency restriction on a parent sole managing conservator.

All sections of the Family Code that mention a geographic residency restriction concern joint managing conservatorships. See Tex. Fam.Code Ann. §§ 105.002(c)(1)(E); 153.133(a)(1); 153.134(b)(1) (Vernon Supp. 2009). Ed contends the legislature’s failure to expressly authorize imposition of a geographic residency restriction on a sole managing conservator precludes the trial court from doing so in the appropriate circumstances. We disagree. See, e.g., Interest of A.S., 298 S.W.3d 834, 836 (Tex.App.-Amarillo 2009, no pet.) (residency restrictions maybe imposed upon a sole managing conservator); Sanchez v. Sanchez, No. 04-06-00469-CV, 2007 WL 1888343, at *3 (Tex.App.-San Antonio 2007, pet. denied) (stating trial court had discretion to determine scope of residency restriction on sole managing conservator), cert. denied, — U.S. -, 129 S.Ct. 71, 172 L.Ed.2d 28 (2008). We perceive the purpose of imposing a geographic residency restriction is to ensure those who have rights to possession of the child are able to effectively exercise such rights. See A.S., 298 S.W.3d at 835 (upholding residence restriction on sole managing conservator because in child’s best interest to have frequent and continuing contact with parent possessory conservator). No such purpose is served in this case. As a result of our holdings above, however, there is no person other than Ed with a court-ordered right to possession of S.M.D. Under these circumstances, we hold the restriction unreasonably interferes with Ed’s rights as a parent sole managing conservator. We therefore sustain this issue.

Conclusion

Because Candice lacked standing to seek conservatorship, we reverse the part of the trial court’s order that names her a posses-sory conservator and render judgment dismissing her petition for conservatorship for lack of jurisdiction. We reverse the part of the trial court’s order awarding Candice standard possession of S.M.D. and restricting the area of S.M.D.’s primary residence, and render judgment denying the petition for possession and access. In all other respects, the trial court’s modification order is affirmed.

      . Nonnie remained missing at the time this appeal was argued.

      . Candice’s trial court pleadings cited only section 102.004(a)(1) in support of her standing allegations. That section authorizes a grandparent to file an original suit seeking managing conservatorship upon a showing that the child’s "present circumstances” will significantly impair the child’s physical health or emotional development. Tex. Fam.Code Ann. § 102.004(a)(1). However, when the petition in intervention was filed, S.M.D.'s "present circumstances” were living in Candice’s home with Candice being her primary caregiver. See In re Vogel, 261 S.W.3d 917, 922 (Tex.App.-Houston [14th Dist.] 2008, orig. proceeding) ("present circumstances” in context of section 102.004(a) means circumstances on date petition is filed). The arguments and evidence Candice presented in the trial court did not suggest that S.M.D.'s "present circumstances” endangered her; rather Candice argued that naming Ed S.M.D.’s sole managing conservator would significantly impair her physical health or emotional development. See and compare Tex. Fam.Code Ann. § 102.004(a)(1) and § 102.004(b). In their appellate briefs, Candice and Ed agree that Candice’s standing to seek managing or possessory conservatorship in this case is governed by section 102.004(b).

      . This burden was "relaxed” when compared to what a grandparent must establish in order to initiate a suit for managing conservator-ship. To file an original suit for conservator-ship, a grandparent must establish one of the bases in section 102.003 of the Family Code, have consent of both parents pursuant to section 102.004(a)(2), or show that “the child's present circumstances would significantly impair the child’s physical health or emotional development.” Tex Fam.Code Ann. § 102.004(a)(1).

      . Candice does not recognize that the showing required for standing under section 102.004(b) is the same as that required to overcome the parental presumption in section 153.131. Citing the Texas Supreme Court's opinion in In re V.L.K., 24 S.W.3d 338, 341 (Tex.2000), Candice repeatedly states the parental presumption does not apply in a modification proceeding. With respect to determining the merits of a custody dispute, Candice is correct' — a grandparent who has standing to file or intervene in a modification proceeding to seek conservator-ship is not required to overcome the parental presumption in order to be named a managing conservator. However, the grandparent must have standing in order to assert the claim and proceed to the merits. And, since June 2005, a grandparent who does not have standing under section 102.003 or 102.004(a), must make the same showing as that required to overcome the parental presumption in order to have standing. V.L.K. did not address the issue of standing and was written before the legislature's 2005 amendment of section 102.004(b). Accordingly, the opinion does not affect our analysis of the standing issue.


source: Caselaw Access Project

license: Public Domain

text:
    Cooper BAGHERI, Appellant, v. The STATE of Texas, Appellee.
    No. 04-08-00913-CR.
    Court of Appeals of Texas, San Antonio.
    May 12, 2010.
    Rehearing Overruled June 17, 2010.
    Discretionary Review Refused Nov. 10, 2010.

      George Scharmen, Attorney at Law, San Antonio, TX, for Appellant.
    Scott Roberts, Assistant Criminal District Attorney, San Antonio, TX, for Appel-lee.
    Sitting: CATHERINE STONE, Chief Justice, PHYLIS J. SPEEDLIN, Justice, MARIALYN BARNARD, Justice.
   OPINION

Opinion by: PHYLIS J. SPEEDLIN, Justice.

Cooper Bagheri appeals from his conviction for driving while intoxicated, asserting the trial court erred in denying his request for a limiting instruction as to the breath test results and erred in ruling on two challenges for cause during voir dire. We affirm the judgment of the trial court.

Factual and PROCEDURAL Background

Bagheri was arrested for driving while intoxicated in the early morning on January 1, 2006. The vehicle Bagheri was driving went through a line of flares set up in front of a major accident being investigated by police, and struck one of the police cars parked in the street. Bagheri failed to stop and continued driving; he was stopped by other officers down the road. An officer questioned Bagheri, and then handcuffed him and instructed him to wait on the side of the road until the investigation of the major accident was completed. Bagheri was detained at 1:30 am. Some time later, Officer Mooney conducted the standard field sobriety tests on Bagheri, which caused Mooney to conclude that Bagheri was intoxicated. An intoxilyzer test was conducted on Bagheri at 3:17 a.m. and 3:19 a.m. on January 1, 2006; the test results showed a blood alcohol content (BAC) of 0.163 and 0.146 which is approximately twice the legal limit of 0.08. Bagh-eri was charged by information with driving while intoxicated based on the loss of normal use of his mental and physical faculties by reason of introduction of alcohol (Paragraph A), and having an alcohol concentration of 0.08 or more in his body (Paragraph B).

At trial, in addition to testimony by the investigating officers, the breath test results were admitted into evidence through the expert testimony of George Allen McDougall, the Breath Test Technical Supervisor for Bexar County, Texas. McDougall testified he did not know any of the individual factors about Bagheri necessary in order to extrapolate and give a BAC at the time of driving. Over objection, McDougall testified generally about the rates of alcohol absorption and elimination over time based on population studies. McDougall also testified that the BAC readings obtained from the breath test show that Bagheri consumed a “substantial amount” of alcohol before the samples were taken. The court instructed the jury that it could find Bagheri guilty if it found beyond a reasonable doubt that he had driven or operated a motor vehicle while “intoxicated,” meaning either he did not have the normal use of his mental and physical faculties due to alcohol ingestion (impairment definition), or he had an alcohol concentration of 0.08 or more in his body (per se definition). The jury found Bagheri guilty. The court sentenced Bagheri to six months in jail plus a $2,000 fine, but suspended the sentence and placed Bagheri on community supervision for 18 months. Bagheri timely appealed.

Analysis

Limiting Instruction. In his first issue, Bagheri argues the trial court erred in refusing his request for a jury instruction limiting the relevance of the breath test results to the issue of whether Bagheri had consumed alcohol before the test, and not as to whether he had a BAC in excess of 0.08 at the time he was driving. Bagh-eri asserts that, in the absence of retrograde extrapolation testimony, the test results were relevant only to the impairment definition of intoxication and were not relevant to the per se definition of intoxication, ie., a BAC of 0.08 or more. Bagheri challenges only the admission of the breath test results without a limiting instruction; he does not challenge any aspect of McDougall’s testimony on appeal. The State responds that Bagheri’s requested instruction was not a correct statement of the law, and therefore the court did not err in denying it.

When the State offered the breath test results into evidence, Bagheri objected that the test results were not relevant to the allegation in Paragraph B of the information that Bagheri had a BAC of 0.08 or more while he was driving the vehicle; he argued that if the results were admitted, they should be limited to the issue of loss of normal use of Bagheri’s faculties to demonstrate he had consumed alcohol, and not “to prov[e] an actual alcohol concentration .... ” The State replied that Bagheri’s objection went to the weight of the evidence, not its admissibility. The court overruled Bagheri’s objection and admitted the breath test results without limitation. At the charge conference, Bagheri requested the following limiting instruction with respect to the breath test results:

During the course of the trial evidence of certain breath test results were admitted. The tests are relevant only for the limited purpose of demonstrating that the appellant had consumed alcohol at some time before the tests were administered.

The court denied the instruction. Because Bagheri preserved error by objecting and requesting the limiting instruction, we review the trial court’s ruling denying the instruction to determine whether it was error and, if so, whether the error caused “some harm” to Bagheri. Mann v. State, 964 S.W.2d 639, 641 (Tex.Crim.App.1998).

We agree with the State that the limiting instruction requested by Bagheri is not a correct statement of the law; therefore, it was not error to deny the instruction. As Bagheri concedes in his brief, the Court of Criminal Appeals has rejected the argument that breath test results are irrelevant under the per se definition of intoxication in the absence of retrograde extrapolation evidence. See Stewart v. State, 129 S.W.3d 93, 96-97 (Tex.Crim.App.2004) (holding that, even without retrograde extrapolation testimony, breath test results obtained 80 minutes after stop were relevant under both definitions of intoxication because they provided evidence that defendant had consumed alcohol and thus tended to make it more probable she was intoxicated while driving). In Stewart, the Court characterized breath test results without retrograde extrapolation as simply one of the “pieces in the evidentiary puzzle for the jury to consider in determining whether [the defendant] was intoxicated at the time [he] drove.” Id. at 97. Further, the Court noted that admission of breath test results without extrapolation evidence does not necessarily encourage the jury to engage in “its own crude retrograde extrapolation” because it is not necessary for the jury to determine the defendant’s precise BAC at the time he was driving — the jury only needs to find beyond a reasonable doubt that either the defendant’s faculties were impaired or his BAC was 0.08 or more when he was driving. See id.

In addition, the Court addressed the probative value of breath test results without extrapolation testimony in State v. Mechler, holding that the prejudice arising from admission of breath test results obtained 90 minutes after the defendant’s arrest did not outweigh the probative value of the test results under Texas Rule of Evidence 403. State v. Mechler, 153 S.W.3d 435, 440-41 (Tex.Crim.App.2005). The Court recognized that “the intoxilyzer results are undoubtedly prejudicial to [the defendant], but they are not unfairly prejudicial because this evidence relates directly to the charged offense.” Id. The Court expressly stated that the breath test results, without accompanying retrograde extrapolation evidence, were relevant and probative as to both the per se and impairment definitions of intoxication. Id. at 440 (test results indicated defendant had consumed alcohol and thus tended to make it more probable that he was intoxicated at time of driving under both per se and impairment definitions of intoxication).

Bagheri argues that, despite Steivayt and Mechler, the particular facts of this case justified a limiting instruction on the breath test results to protect Bagheri from unfair prejudice and confusion of the issues created by the absence of retrograde extrapolation testimony plus “confusing and questionable” testimony about population studies unconnected to the defendant and the prosecution’s “misrepresentation” of the time span between the stop and the breath test. Bagheri relies on language in Gigliobianco v. State, in which the Court explained there may be a case in which the trial court could reasonably conclude the probative value of breath test results are substantially outweighed by the danger of unfair prejudice or confusion of the issues — but held that this was not such a case. Gigliobianco v. State, 210 S.W.3d 637, 642-43 (Tex.Crim.App.2006) (holding that BAC test results obtained 75 minutes after driving had considerable probative value in proving both per se and impairment intoxication at the time of driving). Bagheri acknowledges that Gigliobianco was decided “on its own limited facts.” See id. In his brief, Bagheri argues merely that giving the requested limiting instruction “would not necessarily conflict with existing authority.”

In a case decided after briefing was complete in this appeal, the Court of Criminal Appeals settled the issue by holding that a jury instruction that stated breath test results could be considered only for “the limited purpose of showing that the individual who was tested had ingested alcohol only at some point before the time of the test” was an improper comment on the weight of the evidence. Kirsch v. State, 306 S.W.3d 738, 746-48 (Tex.Crim.App.2010). In holding the instruction was error, the Court emphasized that no Texas statute, rule of evidence, or judicial precedent limits the jury’s consideration of an otherwise admissible breath test result. Id. In discussing the import of Steiuart, Mechler and Gigliobianco, the Court explained that, “The purport of these decisions, taken together, is that BAC-test results, even absent expert retrograde extrapolation testimony, are often highly probative to prove both per se and impairment intoxication.” Id. at 745. Finally, the Court noted that a BAC result is not sufficient by itself to prove the defendant was driving while intoxicated according to the per se definition; in the absence of retrograde extrapolation testimony, there must be other evidence in the record to support an inference that the defendant was intoxicated at the time of driving as well as at the time of the breath test. Id. at 743-46. Here, although there was no retrograde extrapolation evidence, the jury had other evidence of Bagheri’s intoxication to consider along with the breath test results, including the officers’s testimony about Bagheri’s driving and striking a police car before he was stopped, his disheveled appearance, bloodshot eyes, smell of alcohol, slow speech, and unstable stance when he stepped out of the vehicle, the results of his field sobriety tests, and Bagheri’s statement at the scene that he hit the police car because “it was in the way.”

We conclude that'under Stewart, Me-chler, and Kirsch, the breath test results were properly admitted without an instruction limiting their relevance solely to the impairment definition of intoxication. Accordingly, we overrule Bagheri’s first issue.

Challenges for Cause. In his second and third issues, Bagheri contends the trial court erred in ruling on two challenges for cause to potential jurors during voir dire in violation of article 35.16 of the Code of Criminal Procedure. Tex.Code Crim. Proc. Ann. art. 35.16 (Vernon 2006). Specifically, Bagheri asserts the court erred in denying his challenge for cause to venire member no. 13, Candace Martinez, because she showed a bias against the defense by making the statement that if a person was arrested for DWI then they must be guilty. See Tex.Code Crim. Proc. Ann. art. 35.16(c)(2) (venire member may be challenged for cause by defendant if he or she has a bias or prejudice against the law upon which the defense is entitled to rely). In addition, Bagheri argues the court erred in granting the State’s challenge for cause to venire member no. 5, Alexis Mata, based on her statement that she does not judge people and would be unable to reach a verdict. See Tex.Code Crim. Proc. Ann. art. 35.16(b)(3) (State may challenge venire member for cause if he or she has a bias or prejudice against the law upon which the State is entitled to rely for conviction or punishment). Bagheri asserts he was harmed by both rulings because an objectionable venire member, no. 4, Carolyn McCannon, ended up on the jury.

When reviewing a trial court’s decision to grant or deny a challenge for cause based on bias or prejudice, we look at the entire record to determine if there is sufficient evidence to support the ruling. Feldman v. State, 71 S.W.3d 738, 744 (Tex.Crim.App.2002); Stewart v. State, 162 S.W.3d 269, 280 (Tex.App.-San Antonio 2005, pet. ref d). The test is whether the venireperson’s bias or prejudice would substantially impair their ability to carry out their oath and follow the court’s instructions in accordance with the law. Feldman, 71 S.W.3d at 743-45. Before a venire member may be excused for cause on the basis of bias or prejudice, the law must be explained and she must be asked whether she can follow the law regardless of her personal views. Id. To establish that a challenge is proper, the proponent of the challenge must show the venire member understood the law and could not overcome her prejudice enough to follow the law. Id. When the record shows the venireperson vacillated on her ability to follow the law, we must defer to the trial court. Moore v. State, 999 S.W.2d 385, 400 (Tex.Crim.App.1999); Brown v. State, 913 S.W.2d 577, 580 (Tex.Crim.App.1996).

Turning to Bagheri’s issue complaining of the denial of his challenge for cause to venire member no. 13, Candace Martinez, it appears Bagheri failed to preserve the issue. To preserve error on the denial of his challenge for cause, Bagheri must show on the record that: (1) he asserted a clear and specific challenge for cause to that venire member; (2) he used a peremptory challenge on the complained-of venire member; (3) he exhausted all his peremptory challenges; (4) his request for additional peremptory strikes was denied; and (5) an objectionable juror sat on the jury. Feldman, 71 S.W.3d at 744; Stewart, 162 S.W.3d at 280. The record shows Bagheri did not use a peremptory strike on Martinez, and she ended up sitting on the jury. Bagheri therefore cannot show he was harmed by being forced to use a peremptory strike to remove Martinez and then suffering a detriment from the loss of the strike. Feldman, 71 S.W.3d at 743-45; Sells v. State, 121 S.W.3d 748, 758 (Tex.Crim.App.2003). Even if the issue was preserved, the record does not show the trial court abused its discretion in denying the defense challenge for cause on Martinez. Stewart, 162 S.W.3d at 280 (abuse of discretion standard). Although Martinez initially stated she would automatically assume someone who was arrested for D.W.I. was guilty, she was rehabilitated during individual voir dire when the State explained there are different standards for an arrest and a conviction. After hearing the explanation of the law, Martinez stated she would require the State to meet the higher burden of proof beyond a reasonable doubt in order to find Bagheri guilty, and if it failed to meet that higher burden she could then find Bagheri not guilty. Martinez indicated she understood the law, and stated she could follow it; therefore, the trial court did not abuse its discretion in denying Bagheri’s challenge for cause to Martinez. See Adanandus v. State, 866 S.W.2d 210, 222 (Tex.Crim.App.1993) (if venireperson ultimately states he can follow court’s instructions and render a verdict according to the evidence, the venireperson is not challengea-ble for cause, even if he originally equivocated on his answers).

Finally, Bagheri complains the trial court abused its discretion in granting the State’s challenge for cause to venire member no. 5, Alexis Mata. Specifically, Bagheri argues the State failed to meet its burden on the challenge for cause because it did not ask Mata any questions during individual voir dire. As noted, we look at the entire record to determine if there is sufficient evidence to support the court’s ruling. Feldman, 71 S.W.3d at 744. In reviewing a decision to sustain a challenge for cause, we consider whether the totality of the voir dire testimony supports the trial court’s implied finding of fact that the prospective juror is unable to take the required oath and follow the law as instructed by the court. Kemp v. State, 846 S.W.2d 289, 291 (Tex.Crim.App.1992). We must also be mindful of the trial judge’s unique position in observing the demeanor of the venireperson, and grant great deference to the trial court’s determination. Id. An appellant who complains of an erroneously excluded venire member must demonstrate that either: (1) the trial court applied the wrong legal standard in granting the challenge for cause; or (2) the court abused its discretion in applying the correct legal standard. Kemp, 846 S.W.2d at 296.

The State may challenge for cause any venireperson who “has a bias or prejudice against any phase of the law upon which the State is entitled to rely for conviction or punishment.” Tex.Code CRIm.Proc.Ann. art. 35.16(b)(3). A venire-person who is unable to enter a finding of guilt warrants sustaining a challenge for cause. Roy v. State, 891 S.W.2d 315, 326 (Tex.App.-Fort Worth 1994, no pet.). A prospective juror who would ultimately be guided by his or her personal beliefs rather than by the law is unqualified to sit as a juror. Castillo v. State, 739 S.W.2d 280, 296 (Tex.Crim.App.1987). Here, venire member no. 5 unequivocally stated her personal feeling that, “I don’t like judging people” and “I’ve never judged anybody in my life.” She explained that she “can’t help but put myself in their position.” When asked by defense counsel, “You don’t think you can reach a verdict?” Mata answered, “No, I can’t.” Based on the unambiguous voir dire testimony, we hold the trial court applied the law correctly and did not abuse its discretion in sustaining the State’s challenge for cause to Mata.

Based on the foregoing reasons, we overrule all of Bagheri’s issues on appeal, and affirm the trial court’s judgment.

      . Mata v. State, 46 S.W.3d 902, 908-09 (Tex.Crim.App.2001) (explaining that retrograde extrapolation is "the computation back in time of the blood-alcohol level — that is, the estimation of the level at the time of driving based on a test result from some later time.”). In Mata, the court made clear that any retrograde extrapolation testimony was not reliable unless it was based on sufficient characteristics of the particular defendant. Id. at 916-17.

      . The limiting instruction requested by Bagh-eri tracks the language used in the dissenting opinion in Stewart, 129 S.W.3d at 99.