NO. 07-10-00353-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO
PANEL A APRIL 27, 2011

IN THE INTEREST OF J.J.K., A CHILD

FROM THE 223RD DISTRICT COURT OF GRAY COUNTY; NO. 33,952; HONORABLE LEE WATERS, JUDGE

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

OPINION
Appellant, Joseph S. Kirkla nd, appeals a judgment from a jury verdict awarding sole managing conservatorship of J.J.K. to appellee, Jennifer Jol ene Smith, and further finding that naming Kirkland as possessory cons ervator of the child would not be in the best interest of the child. Kirkland appeals through two issues. We will affirm.
Factual and Procedural Background
The judgment that Kirkland ap peals from is the result of a five-year legal battle in a suit affecting the parent-chi ld relationship. After the original suit was settled by agreement, Kirkland filed a motion for new tria l, or in the alter native, another suit alleging a change of status of the child or parent requi ring a modification of the2 judgment. This suit was also terminated by an agreed judgment. Within the year, Kirkland filed yet another suit requesting to modify the parent-child relationship. Eventually, Smith filed a count er petition to modify the parent-child relationship and these matters were tried before a jury on July 19-21, 2010. The jury returned its verdict on July 21, answering all jury questions agai nst Kirkland. The tr ial court entered its judgment on the jury’s answers to the jury questions on August 5, 2010. Kirkland filed his notice of appeal on September 7, 2010. 1
Subsequently, Kirkland made at least thre e attempts to file briefs meeting the requirements of the Texas Rules of Appe llate Procedure; however, the first two attempts resulted in Kirkland being advised that the briefs fil ed failed to meet the requirements of the rules. See T EX

. R. A PP

. P. 38.1. 2 Finally, on April 6, 2011, Kirkland filed a brief that was acceptable. The cl erk’s record in this matter was filed on December 6, 2010. However, no reporter’s record has been received by the Court.
On October 7, 2010, the Cour t advised Kirkland that the o fficial reporter had filed for an extension of time to file the reporter’s record. Kirkland was also advised, on that date, that he needed to cert ify back to the Court that he had requested preparation of the reporter’s record and made arrangements to pay for the same by October 25, 2010. On November 15, 2010, this Court advised Kirkland that no reporter’s record had been received and that the official reporter had advised the Court that Kirkland had not

1 Kirkland’s notice of appea l was due September 5, 2010, however this was a Sunday and the following day was a holiday, Labor Day, which made Kirkland’s notice timely by being filed on September 7, 2010. See T EX

. R. A PP

. P. 4.1 and 26.1.

2 Further reference to the Texas Rule s of Appellate Proc edure will be by reference to “Rule ___” or “rule ___.”3 requested preparation of any part of the reporter’s record nor had Kirkland made arrangements to pay for the record. Based upon this information, Kirkland was advised that the matter would be decided in the absence of a reporter’s record. See Rule 37.3(c). Kirkland has never cl aimed to be indigent or that he is otherwise permitted to proceed without payment of costs of appeal.
Smith’s brief is not ye t due at this Court. See Rule 38.6(b). In order to expedite a decision in this matter, we will, on our ow n initiative, suspend the operation of rules 38.6(b) and 39.8, and consider the issues raised by Kirkland’s brief. See Rule 2.
Kirkland’s issues are that: 1) he has nev er been found to be a threat to the child’s emotional or physical state, and 2) Smith was in contem pt many times creating the climate that led to the extensive litigati on. Under the backgr ound facts and procedures of the case, as reflected above, we construe Kirkland’s issues to attack the sufficiency of the evidence to support the jury ’s verdict and subsequent judgment.
Analysis
After appropriate instructions were given, the jury was asked whether the order in existence that controlled the parent-child relationship should be changed to designate Kirkland as the conservator with exclusive right to designate the primary residence of the child. The jury answe red “No.” The jury was then asked if the joint managing conservatorship of the child should be repl aced by a sole managing conservatorship. The jury answered “Yes.” Pursuant to the trial court’s instructions, the jury then4 answered that Smith, w ho was then known as Jennifer Jolene Martindale, 3 should be named sole managing conservator of the minor child. Finally, when asked who, if anyone, should be named possessory conserva tor and given the option of naming Kirkland, the jury answered “None.” Based upon these answers, the trial court entered its judgment removing the parties as joint managing conservators, naming Smith as the sole managing conservator, and finding it was not in the bes t interest of the child to name Kirkland possessory conservator of the child.

Standard of Review

Under our construction of Kirkland’s iss ues, we must assume he intends to attack both the legal and factual su fficiency of the evidence.
Legal Sufficiency
According to City of Keller v. Wilson , 168 S.W.3d 802, 810 (Tex. 2005), “‘No evidence’ points must, and may only, be sustained when the record discloses one of the following situations: a) a complete absence of evidence of a vital fact; b) the court is barred by rules of law or of evidence from giving weight to the on ly evidence offered to prove a vital fact; c) the evidence offered to prove a vital fact is no more than a mere scintilla; d) the evidence est ablishes conclusively the opposite of the vital fact.” When reviewing an attack on the le gal sufficiency of the evi dence on an issue that the appellant has the burden of proo f, we are to review the ev idence supporting the jury finding to determine whether there is no evi dence to support this finding, and then we

3 Appellee had previously remarried and, at time of trial, was using Martindale as her last name.5 must review all of the evidence to determi ne whether all facts are established for the contrary position as a matter of la w. Dow Chem. Co. v. Francis , 46 S.W.3d 237, 241 (Tex. 2001) (citing Sterner v. Marathon Oil Co. , 767 S.W.2d 686, 690 (Tex. 1989)). Our review consists of our viewing the evidence in the light most favorable to the verdict, crediting favorable evidence if reasonable jurors could, and disregarding all contrary evidence unless reasonable jurors could not. City of Keller , 168 S.W.3d at 807. Finally, we may not substitute our judgment for that of the trier of fact as long as the evidence would allow reasonable and fair-minded people to differ in their conclusion. Id . at 822. This is but another way of sayi ng that so long as there is at least a scintilla of evidence to support the jury’s answer to the fact ques tion at issue, the legal sufficiency challenge must fail. Tarrant Reg’l Water Dist. v. Gragg , 151 S.W.3d 546, 552 (Tex. 2004).
Factual Sufficiency
In a factual sufficiency review, we consi der all of the evidence, both supporting and contrary to the jury’s answer to the fact question at issue. Pl as-Tex, Inc. v U.S. Steel Corp. , 772 S.W.2d 442, 445 (Tex. 19 89). Because the jury question involved in our analysis was one that Kirkland bore the burden of proof on, we will only reverse if we find that the jury’s answer is agains t the great weight and preponderance of the evidence. Dow Chem. Co. , 46 S.W.3d at 242. In order to reverse on a factual sufficiency point, we must be convinced that the jury’s answer to the question at issue was clearly wrong and manife stly unjust. Cain v. Bain , 709 S.W.2d 175, 176 (Tex. 1986).6 As can be seen by the standard of review for either legal or factual sufficiency, we are required to review the evidence to det ermine if that evi dence is sufficient to sustain the jury’s verdict. Inasmuch as Kirkland has not provided the Court with the reporter’s record, there is noth ing for us to review. See In re Spiegel , 6 S.W.3d 643, 646 n.1 (Tex.App.—Amarillo 1999, no pet.) A ccordingly, we can only say that, based upon the record that is before us, the jury ’s answers must stand and the trial court’s judgment must be affirmed.

Conclusion
The judgment of the tr ial court is affirmed.

Mackey K. Hancock Justice