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. Kirkland, appeals a judgment from a jury verdict awarding 

sole managing conservatorship of J.J.K. to appellee, Jennifer Jolene Smith, and further 

finding that naming Kirkland as possessory conservator 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 appeals from is the result of a five-year legal battle in 

a suit affecting the parent-child relationship. After the original suit was settled by 

agreement, Kirkland filed a motion for new trial, or in the alternative, another suit 

alleging a change of status of the child or parent requiring a modification of the 
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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 counter 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 against Kirkland. The trial 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 three attempts to file briefs meeting the 

requirements of the Texas Rules of Appellate Procedure; however, the first two 

attempts resulted in Kirkland being advised that the briefs filed failed to meet the 

requirements of the rules. See TEX. R. APP. P. 38.1.2 Finally, on April 6, 2011, Kirkland 

filed a brief that was acceptable. The clerk’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 Court advised Kirkland that the official 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 certify 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 appeal 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 TEX. R. APP. P. 4.1 and 26.1. 

2

 Further reference to the Texas Rules of Appellate Procedure will be by 

reference to “Rule ___” or “rule ___.” 
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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 claimed to be indigent or that he is otherwise permitted to 

proceed without payment of costs of appeal. 

 Smith’s brief is not yet due at this Court. See Rule 38.6(b). In order to expedite 

a decision in this matter, we will, on our own 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 never been found to be a threat to the child’s 

emotional or physical state, and 2) Smith was in contempt many times creating the 

climate that led to the extensive litigation. Under the background 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 answered “No.” The jury was then asked if the joint managing 

conservatorship of the child should be replaced by a sole managing conservatorship. 

The jury answered “Yes.” Pursuant to the trial court’s instructions, the jury then 
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answered that Smith, who 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 conservator 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 best interest of the child to 

name Kirkland possessory conservator of the child. 

Standard of Review

 Under our construction of Kirkland’s issues, we must assume he intends to attack 

both the legal and factual sufficiency 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 only 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 establishes conclusively the opposite of the vital fact.” When 

reviewing an attack on the legal sufficiency of the evidence on an issue that the 

appellant has the burden of proof, we are to review the evidence supporting the jury 

finding to determine whether there is no evidence to support this finding, and then we 

 3

 Appellee had previously remarried and, at time of trial, was using Martindale as 

her last name. 
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must review all of the evidence to determine whether all facts are established for the 

contrary position as a matter of law. 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 saying that so long as there is at least a scintilla of evidence 

to support the jury’s answer to the fact question 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 consider all of the evidence, both supporting 

and contrary to the jury’s answer to the fact question at issue. Plas-Tex, Inc. v U.S. 

Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989). 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 against 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 manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 

1986). 
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 As can be seen by the standard of review for either legal or factual sufficiency, 

we are required to review the evidence to determine if that evidence is sufficient to 

sustain the jury’s verdict. Inasmuch as Kirkland has not provided the Court with the 

reporter’s record, there is nothing for us to review. See In re Spiegel, 6 S.W.3d 643, 

646 n.1 (Tex.App.—Amarillo 1999, no pet.) Accordingly, 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 trial court is affirmed. 

 Mackey K. Hancock 

 Justice