In the Interest of S.L., a Child v. the State of Texas

NUMBER 13-25-00233-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

IN THE INTEREST OF S.L., A CHILD

ON APPEAL FROM THE COUNTY COURT AT LAW NO. 5
OF NUECES COUNTY, TEXAS

MEMORANDUM OPINION

Before Justices Silva, Peña, and West
Memorandum Opinion by Justice Peña

Appellant S.L. (Father) appeals a judgment terminating the parental rights to his

daughter S.L. (Daughter) following a jury trial. 1 By three issues, Father argues that

(1) there is legally and factually insufficient evidence supporting termination of his

1 To protect the identity of minor children in an appeal from an order terminating parental rights,

parents and children are referred to by their initials. See TEX. FAM. CODE ANN. § 109.002(d). Because the
father and child share the same initials, we refer to them as “Father” and “Daughter.”
parental rights, (2) the trial court abused its discretion by admitting highly prejudicial

evidence, and (3) cumulative evidentiary errors and flawed jury instructions deprived him

of due process. Appellee, the Texas Department of Family and Protective Services (the

Department), argues, among other things, that Father failed to preserve these issues for

appellate review. We affirm.

I. BACKGROUND

On October 17, 2023, the Department filed a petition seeking to terminate V.G.’s2

and Father’s parental rights to Daughter, who was a year old at the time of trial. The

petition was accompanied by an affidavit in support of removal alleging, among other

things, neglectful supervision. According to the affidavit, both V.G. and Father had a

prolonged history of drug usage and had previously failed to cooperate with the

Department in an unrelated case. On October 19, 2023, the trial court granted the

Department temporary managing conservatorship of Daughter.

The case proceeded to a jury trial on April 17, 2025. At trial, Emily Hernandez

testified that she is a conservatorship specialist with the Department who was the

caseworker for Daughter’s case. Hernandez testified that Father’s noncompliance with a

family plan of service in a separate case was one of the reasons the Department

petitioned for removal. Specifically, Hernandez testified that Father failed to provide an

adequate plan of care for his medically fragile twins and screened positive for cocaine.

Concerning drug usage, Hernandez testified that substance abuse counseling was

included in Father’s plan of service because Father had screened positive in a previous

case and continued to screen positive in Daughter’s case. When Father took the stand,

2 V.G. is the biological mother of Daughter. V.G.’s parental rights were also terminated. She is not

a party to this appeal.

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the following exchange occurred with the Department’s counsel:

[Department’s counsel]: So, where did you sell the drugs out of?

[Father]: Do I have to answer that, Your Honor?

THE COURT: You have to answer the question minus
objection.

[Father’s counsel:] I’m going to object to relevance, Judge.
I’m not sure what that matters.

[Department’s counsel]: Your Honor, it is relevant as to where the
kids were.

THE COURT: Overruled on relevance.

Hernandez also testified that while Father claimed to own his own companies, he

failed to provide proof of employment. Considering Father’s past drug usage, Hernandez

testified that the lack of verification was concerning to the Department. Hernandez further

testified that Father’s housing situation was unstable, as he had gone from living in a

trailer to moving into his mother’s apartment. Father failed object to this testimony. The

Department also offered into evidence a copy of a prior parental termination order to

Father’s twin children without objection. Hernandez later testified that the Department had

ongoing concerns with Father’s lifestyle, including an arrest for aggravated sexual

assault. Father’s counsel objected on the grounds that such testimony was highly

prejudicial and outweighed any probative value but was overruled.

Subsequently, the jury found by clear and convincing evidence that Father:

(1) knowingly placed or knowingly allowed the child to remain in conditions or

surroundings which endanger the physical or emotional well-being of the child;

(2) engaged in conduct or knowingly placed the child with persons who engaged in

conduct which endangers the physical or emotional well-being of the child;

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(3) contumaciously refused to submit to a reasonable and lawful order of a court; (4) failed

to comply with the provisions of a court order that specifically established the actions

necessary for the parent to obtain the return of the child who has been in the temporary

managing conservatorship of the Department; 3 (5) used a controlled substance in a

manner that endangered the health or safety of the child and failed to complete a court-

ordered substance abuse treatment program, and (6) termination is in the child’s best

interest. TEX. FAM. CODE ANN. §§ 161.001(b)(1)(D), (b)(1)(E), (b)(1)(I), (b)(1)(O), (b)(2).

This appeal followed.

II. SUFFICIENCY OF THE EVIDENCE

By his first issue, Father contends that the “evidence was legally and factually

insufficient to support termination of [his] parental rights under Tex[as] Fam[ily] Code

§ 161.001.” Specifically, Father complains that the Department did not prove by clear and

convincing evidence a statutory ground listed in § 161.001(b)(1) or that termination was

in Daughter’s best interest. The Department asserts that Father failed to preserve error

for appellate review.

Following a jury trial, a challenge to the legal sufficiency of the evidence must be

preserved in one of five ways: “(1) a motion for instructed verdict; (2) a motion for

judgment notwithstanding the verdict (JNOV); (3) an objection to the submission of the

question to the jury; (4) a motion to disregard the jury’s answer to a vital fact question; or

(5) a motion for new trial.” In re D.T., 593 S.W.3d 437, 439 (Tex. App.—Texarkana 2019),

3 We note the legislature has repealed subsection (O) effective September 1, 2025. H.B. 116, Act

of May 28, 2025, 89th Leg., R.S., ch. 211, § 2, sec. 161.001, 2025 Tex. Sess. Law Serv. The repeal applies
to suits affecting parent-child relationships pending in the trial court on the effective date. Because the
notice of appeal was filed prior to the effective date of HB 116, subsection (O) remains in effect for the
purpose of this appeal.

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aff’d, 625 S.W.3d 62 (Tex. 2021) (citations omitted); see TEX. R. APP. P. 33.1(a); see also

In re E.M., No. 13-24-00009-CV, 2024 WL 2340833, at *1 (Tex. App.—Corpus Christi–

Edinburg May 23, 2024, no pet.) (mem. op.) (same).

Further, the Texas Rules of Civil Procedure require that a party file a motion for

new trial as a prerequisite for a “complaint of factual insufficiency of the evidence to

support a jury finding.” TEX. R. CIV. P. 324(b)(2); see In re J.M.S., 43 S.W.3d 60, 62 (Tex.

App.—Houston [1st Dist.] 2001, no pet.) (applying rule of civil procedure 324 to a parental

termination case) (citing Cecil v. Smith, 804 S.W.2d 509, 510 (Tex. 1991)). “[A]llowing

appellate review of unpreserved error would undermine the Legislature’s intent that cases

terminating parental rights be expeditiously resolved, thus promoting the child’s interest

in a final decision and thus placement in a safe and stable home.” In re L.M.I., 119 S.W.3d

707, 711 (Tex. 2003) (cleaned up).

It is undisputed that Father failed to file or otherwise make any of the

aforementioned motions. See In re D.T., 593 S.W.3d at 439; see also In re E.M., 2024

WL 2340833, at *1. Nor does Father address the preservation issue by arguing that

counsel unjustifiably failed to preserve error. See In re J.P.B., 180 S.W.3d 570, 574 (Tex.

2005) (noting that “the court of appeals may review the factual sufficiency of the evidence

in a parental termination case—even if a party failed to preserve error in the trial court—

if the parent’s counsel unjustifiably failed to preserve error” but finding that appellant failed

to preserve error because she “never alleged in either the court of appeals or in this Court

that her counsel unjustifiably failed to preserve error”).

Because Father failed to preserve his complaints of legal and factual evidentiary

sufficiency as to the jury’s grounds for termination and best interest findings, we overrule

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his first issue. See In re D.T., 593 S.W.3d at 439 (overruling appellant’s legal and factual

sufficiency complaints in a parental termination case because she failed to file or

otherwise make any of the requisite motions or objections to preserve error); In re A.L.,

486 S.W.3d 129, 129–30 (Tex. App.—Texarkana 2016, no pet.) (overruling appellant’s

argument “that the evidence is legally and factually insufficient to support the jury’s finding

that termination of her parental rights was in the child’s best interest” because appellant

did not preserve error by taking the requisite actions specified above); see also In re

J.A.V., No. 04-19-00455-CV, 2019 WL 6887709, at *1 (Tex. App.—San Antonio Dec. 18,

2019, pet. denied) (mem. op.) (overruling appellant’s legal and factual sufficiency

complaints because she did not challenge the jury’s findings in any of the manners

specified above); In re E.M., 2024 WL 2340833, at *1 (same).

III. PREJUDICIAL EVIDENCE

By his second issue, Father raises several sub-issues, contending that the trial

court abused its discretion “by admitting highly prejudicial evidence, including a prior

termination, a dismissed criminal charge, and references to [his] poverty” in “violat[ion of]

Rule 403 of the Texas Rules of Evidence.” Again, the Department argues that Father

failed to preserve error.

A. Evidence Regarding Poverty and Prior Termination

By his first sub-issue, Father complains that the admission of his “lack of proof of

income, inability to complete services, and unstable housing,” and prior termination of his

parental rights to his twin children violated Rules 403 and 404(b) of the Texas Rules of

Evidence.

Generally, if the appellant does not make an objection during trial, he cannot object

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for the first time on appeal. See TEX. R. APP. P. 33.1(a). A trial court must be presented

with a timely request, objection, or motion setting forth the specific grounds for the

requested ruling, unless such grounds are “apparent from the context of the request,

objection, or motion.” Singh v. Trinity Mktg. & Distrib. Co., 397 S.W.3d 257, 264 (Tex.

App.—El Paso 2013, no pet.); see also Levine v. Steve Scharn Custom Homes, Inc., 448

S.W.3d 637, 656 (Tex. App.—Houston [1st Dist.] 2014, pet. denied). “If a party fails to do

this, error is not preserved, and the complaint is waived.” Singh, 397 S.W.3d at 264; see

In re J.R.P., 526 S.W.3d 770,780 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (finding

that appellant failed to preserve error when she did not object or file a bill of exception to

complained of evidence at trial).

Here, Hernandez testified about Father’s inability to show satisfactory proof of

income and testified that Father’s housing situation was unstable, as he had gone from

living in a trailer to moving into his mother’s apartment. However, Father failed object to

this testimony. The Department also offered into evidence a copy of a prior parental

termination order to Father’s twin children. In response, Father’s counsel stated, “No

objections, Judge.” Therefore, error was not preserved for our appellate review, and the

complaint is waived. See e.g., Singh, 397 S.W.3d at 264. We overrule Father’s first sub-

issue.

B. Evidence Regarding Prior Drug Usage

By his second sub-issue, Father argues that “[s]peculative testimony about drug

sales . . . . [S]hould have been excluded under Rules 403 and 404(b) of the Texas Rules

of Evidence.”

To preserve a complaint for appellate review, an appellant is required to raise the

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same objection in the trial court that they raise on appeal. See TEX. R. APP. P. 33.1(a);

Patriot Contracting, LLC v. Shelter Prods., Inc., 650 S.W.3d 627, 650 (Tex. App.—

Houston [1st Dist.] 2021, pet. denied) (citing Benson v. Chalk, 536 S.W.3d 886, 895–96

(Tex. App.—Houston [1st Dist.] 2017, pet. denied) (“To preserve error for our review, an

appellant’s complaint on appeal must comport with [its] object in the trial court.”)).

When Hernandez was asked about Father testing positive on a drug screen, his

counsel objected that Hernandez was not qualified as an expert to testify about the

positive drug results, that the results were irrelevant, that the results were hearsay, and

that Hernandez lacked personal knowledge. These objections were overruled by the trial

court. Moreover, the Department asked Father about his prior history with selling drugs.

Father’s counsel only raised a relevance objection, which was overruled by the trial court.

None of the objections to the complained of testimony lodged at trial comport with Father’s

complaint on appeal that the testimony was unfairly prejudicial and improper character

evidence. Cf. TEX. R. EVID. 402 (irrelevant evidence inadmissible), with id. R. 403 (relevant

evidence may be inadmissible if “probative value is substantially outweighed by a danger

of . . . unfair prejudice” or “misleading the jury”) and id. R. 404(b) (evidence of a crime or

wrong is inadmissible to prove conformity with character); see also Rhodes v. Batilla, 848

S.W.2d 833, 847 (Tex. App.—Houston [14th Dist.] 1993, writ denied) (objections at trial

of “hearsay,” “extraneous” and “irrelevant” did not preserve a Rule 403 appellate

complaint); In re Commitment of Parfait, No. 13-20-00277-CV, 2021 WL 38669743, at *7

(Tex. App.—Corpus Christi–Edinburg Aug. 31, 2021, no pet.) (mem. op.) (objections to

relevance of evidence at trial did not comport with complaints of undue prejudice on

appeal).

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To preserve his complaint for appeal Father was required to raise a Rule 403 and

Rule 404(b) objection at trial, which he failed to do. See TEX. R. EVID. 403, 404. Because

Father’s appellate complaint does not comport with the objections raised at trial, Father’s

complaint has not been preserved for review. See TEX. R. APP. P. 33.1(a); see also Patriot

Contracting, 650 S.W.3d at 650. We overrule Father’s second sub-issue.

C. Evidence Regarding Prior Criminal Charge

By his third sub-issue, Father argues that the “dismissed aggravated sexual

assault charge. . . . [S]hould have been excluded under Rules 403 and 404(b) of the

Texas Rules of Evidence.”

Even though a party objects to certain evidence, prior or subsequent presentation

of essentially the same evidence without objection generally results in waiver of the error.

Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 907 (Tex. 2004) (“The general rule

is error in the admission of testimony is deemed harmless and is waived if the objecting

party subsequently permits the same or similar evidence to be introduced without

objection.”); JNM Express, LLC v. Lozano, 627 S.W.3d 682, 697 (Tex. App.—Corpus

Christi–Edinburg 2021), rev’d on other grounds, 688 S.W.3d 327 (Tex. 2024).

Here, the record demonstrates that Father did not raise any Rule 404(b)

objections to testimony regarding his dismissed criminal charge. Thus, Father’s complaint

concerning Rule 404(b) is not preserved for appellate review. See Singh, 397 S.W.3d at

264; TEX. R. APP. P. 33.1(a); TEX. R. EVID. 404(b). Moreover, when the Department initially

questioned Hernandez about Father’s dismissed criminal charge for aggravated sexual

assault, Father’s counsel objected on the grounds that it was “highly prejudicial

and . . . outweigh[ed] any probative value” but the objection was overruled. See TEX. R.

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EVID. 403. Subsequently, there were three more occasions in which Hernandez testified

regarding Father’s dismissed criminal charge. However, Father failed to reassert a Rule

403 objection and never obtained a running objection. Thus, despite Father’s initial Rule

403 objection, the complained of evidence was subsequently presented without objection.

See Ramirez, 159 S.W.3d at 907. Consequently, Father failed to preserve his complaint.

See id. We overrule Father’s third sub-issue and the entirety of his second issue.

IV. DUE PROCESS

By his third issue, Father contends that “cumulative evidentiary errors and flawed

jury instructions deprived [him] of due process.” The Department argues that error was

not preserved.

A party waives the right to raise a constitutional claim such as due process on

appeal if the claim is not presented to the trial court. Holden v. Holden, 456 S.W.3d 642,

653 (Tex. App.—Tyler 2015, no pet.) (citing Dryer v. Greene, 871 S.W.2d 697, 698 (Tex.

1993)); Kaufman v. Comm’n for Law. Discipline, 197 S.W.3d 867, 875 (Tex. App.—

Corpus Christi–Edinburg 2006, pet. denied). Even in the context of termination cases,

“adhering to our preservation rules isn’t a mere technical nicety, the interests at stake are

too important to relax rules that serve a critical purpose.” In re L.M.I., 119 S.W.3d at 708.

A. Jury Charge

In one sub-issue, Father argues that the jury charge and instructions “omitted

critical guidance.” Specifically, Father argues that the charge “did not instruct the jury that

past endangerment must be connected to a current or future risk.” However, Rule 272 of

the Texas Rules of Civil Procedure states that “[a]ll objections [to the jury charge] not so

presented [in writing or dictated into the record] shall be considered as waived.” TEX. R.

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CIV. P. 272; see also id. R. 274 (“Any complaint as to a question, definition, or instruction,

on account of any defect, omission, or fault in pleading, is waived unless specifically

included in the objections.”). The Texas Supreme Court has noted that a complaint about

the jury charge is waived unless the trial court is made aware of the complaint through a

timely objection and a ruling is obtained, even in termination proceedings. See In re

B.L.D., 113 S.W.3d 340, 349 (Tex. 2003); In re A.V., 113 S.W.3d 355, 363 (Tex. 2003).

The record demonstrates that Father did not object orally or in writing to the jury charge

or its instructions during the charge conference. See TEX. R. CIV. P. 272. Therefore,

Father’s complaint is waived. See In re B.L.D., 113 S.W3d at 349; In re A.V., 113 S.W.3d

at 363. We overrule Father’s first sub-issue.

B. Admitted Evidence

In a second sub-issue, Father argues that “the Department’s improper reliance on

poverty and unrelated terminations” “deprived [him] of a fundamentally fair trial.” Again,

the record demonstrates that Father did not lodge any constitutional complaints during

trial.

Despite the preservation issue, Father’s brief cites to the Texas Supreme Court’s

decision in In re B.L.D. for the proposition that “constitutional error affecting substantial

rights can be considered on appeal even if no objection was made at trial.” In that case,

the Texas Supreme Court discussed how, in limited circumstances, “fundamental error”

allows an appellate court to review error that was not raised at trial. In re B.L.D., 113

S.W.3d at 350. However, it also noted that the doctrine of fundamental error is utilized in

rare instances such as when a court lacks jurisdiction and generally only applies to

criminal or “quasi-criminal” cases. Id. at 350–51. Moreover, the court refused to extend

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the fundamental error doctrine into the area of parental termination cases. See id.

(providing that the fundamental-error doctrine generally does not apply to parental rights

termination cases because “termination cases do not apply criminal procedural or

evidentiary rules”).

Because the constitutional argument was not presented to the trial court, and the

fundamental error doctrine is inapplicable, Father’s due process complaint regarding the

admitted evidence has not been preserved for appellate review. See TEX. R. APP. P.

33.1(A); In re B.L.D., 113 S.W.3d at 350–51; In re D.K., 696 S.W.3d 787, 793–94 (Tex.

App.—Eastland 2024, no pet.) (holding a father’s failure to make the trial court aware of

his constitutional complaint left nothing for the appellate court to review); Kaufman, 197

S.W.3d at 875. We overrule Father’s second sub-issue and the entirety of his third issue.

V. CONCLUSION

We affirm the trial court’s judgment.

L. ARON PEÑA JR.
Justice

Delivered and filed on the
21st day of October, 2025.

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