NO. 12-13-00026-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

 § APPEAL FROM THE THIRD

IN THE INTEREST OF

 § JUDICIAL DISTRICT COURT

B.G.W., A CHILD

 § HENDERSON COUNTY, TEXAS

MEMORANDUM OPINION

V.H. and B.W. appeal the termination of their parental rights. In five and four issues 

respectively, V.H. and B.W. challenge the order of termination. We affirm.

BACKGROUND

V.H. and B.W. are the parents of B.G.W., born August 5, 2002. On November 14, 2011, the 

Department of Family and Protective Services (the Department) filed an original petition for 

protection of the child, for conservatorship, and for termination of Appellants’ parental rights. The 

Department was appointed B.G.W.’s temporary managing conservator and the parents were 

appointed temporary possessory conservators of the child, with limited rights, duties, and access to, 

and possession of, the child.

After a trial, the jury found, by clear and convincing evidence, that V.A. had engaged in one 

or more of the acts or omissions necessary to support termination of her parental rights under Texas 

Family Code Section 161.001(1), subsections (D), (E), and (O), or more specifically, had

knowingly placed or knowingly allowed the child to remain in conditions or surroundings [that]

endanger[ed] the physical or emotional well being of the child;

engaged in conduct or knowingly placed the child with persons who engaged in conduct [that]

endanger[ed] the physical or emotional well being of the child; or

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

for the mother to obtain the return of the child who has been in the permanent or temporary managing 
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conservatorship of the Department of Family and Protective Services for not less than nine months as 

a result of the child’s removal from the parent under Chapter 262 for the abuse or neglect of the child.

The jury also found that termination of the parent-child relationship between V.H. and 

B.G.W. was in the child’s best interest. Based on these findings, the trial court ordered that the 

parent-child relationship between V.H. and B.G.W. be terminated. 

The jury also found, by clear and convincing evidence, that B.W. had engaged in one or 

more of the acts or omissions necessary to support termination of his parental rights under Texas 

Family Code Section 161.001(1), subsections (D), (E), and (O), or more specifically, had

knowingly placed or knowingly allowed the child to remain in conditions or surroundings [that]

endanger[ed] the physical or emotional well being of the child;

engaged in conduct or knowingly placed the child with persons who engaged in conduct [that]

endanger[ed] the physical or emotional well being of the child; or

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

for the father to obtain the return of the child who has been in the permanent or temporary managing 

conservatorship of the Department of Family and Protective Services for not less than nine months as 

a result of the child’s removal from the parent under Chapter 262 for the abuse or neglect of the child.

The jury also found that termination of the parent-child relationship between B.W. and 

B.G.W. was in the child’s best interest. Based on these findings, the trial court ordered that the 

parent-child relationship between B.W. and B.G.W. be terminated. This appeal followed.

SUFFICIENCY OF THE EVIDENCE

As part of her first, second, third, fourth, and fifth issues, V.H. contends that the evidence is 

legally insufficient to support the jury’s finding that her parental rights to B.G.W. should be 

terminated, and that termination of the parent-child relationship was in B.G.W.’s best interest. In his 

first and second issues, B.W. also argues that the evidence is legally insufficient to support the 

jury’s finding that termination of the parent-child relationship was in B.G.W.’s best interest. 

A no evidence complaint is preserved through one of the following: (1) a motion for 

instructed verdict; (2) a motion for judgment notwithstanding the verdict; (3) an objection to the 

submission of the issue to the jury; (4) a motion to disregard the jury's answer to a vital fact issue; 
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or (5) a motion for new trial. T.O. Stanley Boot Co., Inc. v. Bank of El Paso, 847 S.W.2d 218, 220 

(Tex. 1992); see also In re D.J.J., 178 S.W.3d 424, 426-27 (Tex. App.—Fort Worth 2005, no pet). 

V.H. and B.W. did not file a motion for instructed verdict regarding the evidence to support the 

jury’s findings, a motion for new trial, or any of the other motions necessary to preserve their legal 

sufficiency challenges. Therefore, they have waived the right to complain about the legal 

sufficiency of the evidence to support the jury’s findings. 

As part of her first, second, third, fourth, and fifth issues, V.H. also contends that the 

evidence is factually insufficient to support the jury’s findings that her parental rights to B.G.W. 

should be terminated, and that termination of the parent-child relationship was in B.G.W.’s best 

interest. In his first and second issues, B.W. argues that the evidence is factually insufficient to 

support the jury’s finding that termination of the parent-child relationship was in B.G.W.’s best 

interest. A point in a motion for new trial is a prerequisite to a complaint of factual insufficiency of 

the evidence to support a jury finding. In re A.J.L., 136 S.W.3d 293, 301 (Tex. App.—Fort Worth 

2004, no pet.); TEX. R. CIV. P. 324(b)(2); see also In re M.S., 115 S.W.3d 534, 547 (Tex. 2003) 

(applying Texas Rule of Civil Procedure 324(b)(2) requiring a motion for new trial to preserve a 

complaint of factual sufficiency to support jury finding to parental termination cases). V.H. and 

B.W. did not file motions for new trial. Therefore, they have waived the right to complain about the 

factual sufficiency of the evidence to support the jury’s findings. 

Accordingly, we overrule V.H.’s first, second, third, fourth, and fifth issues, and B.W.’s first 

and second issues.1

ADMISSION OF EVIDENCE

In B.W.’s third issue, he argues that the trial court abused its discretion by admitting 

evidence of voice mail recordings that were not produced under the discovery rules and were 

unduly prejudicial. The Department disagrees, contending that another witness testified as to the 

content of the voice mail recordings without objection.

 

1 There is no claim that failure to preserve error was unjustifiable or the result of ineffective assistance of 

counsel. See In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005).
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Standard of Review

We review a trial court's evidentiary rulings for abuse of discretion. Owens–Corning 

Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). A trial court abuses its discretion if it 

acts without reference to any guiding rules or principles or if its actions are arbitrary and 

unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). We 

must uphold the trial court's evidentiary ruling if there is any legitimate basis for the ruling. Owens–

Corning Fiberglas Corp., 972 S.W.2d at 43.

Applicable Law

A party who fails to make, amend, or supplement a discovery response in a timely manner 

may not introduce in evidence the material or information that was not timely disclosed, unless the 

court finds that (1) there was good cause for the failure to timely make, amend, or supplement the 

discovery response, or (2) the failure to timely make, amend, or supplement the discovery response

will not unfairly surprise or unfairly prejudice the other parties. TEX. R. CIV. P. 193.6(a). The 

burden of establishing good cause or the lack of unfair surprise or unfair prejudice is on the party 

seeking to introduce the evidence. TEX. R. CIV. P. 193.6(b). A finding of good cause or of the lack 

of unfair surprise or unfair prejudice must be supported by the record. Id.

Erroneously admitting evidence ―will not result in reversal when other such evidence was 

received without objection, either before or after the complained-of ruling.‖ Coble v. State, 330 

S.W.3d 253, 282 (Tex. Crim. App. 2010) (quoting Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim.

App. 1998)). In other words, an error in the admission of evidence is deemed harmless and is 

waived if the objecting party permits the same or similar evidence to be introduced without 

objection. See Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 907 (Tex. 2004); Breof BNK 

Tex., L.P. v. D.H. Hill Advisors, Inc., 370 S.W.3d 58, 67 (Tex. App.—Houston [14th Dist.] 2012, 

no pet.). Therefore, ―counsel must object every time allegedly inadmissible evidence is offered.‖ 

Hudson v. State, 675 S.W.2d 507, 511 (Tex. Crim. App. 1984).

No judgment may be reversed on appeal on the ground that the trial court made an error of 

law unless the reviewing court concludes that the error complained of (1) probably caused the 

rendition of an improper judgment or (2) probably prevented the appellant from properly presenting 

the case to the court of appeals. TEX. R. APP. P. 44.1(a); Harris Cnty. v. Smith, 96 S.W.3d 230, 234-

35 (Tex. 2002). A reviewing court must evaluate the entire case from voir dire to closing argument, 
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considering the evidence as a whole, the strength or weakness of the case, and the verdict. U-Haul 

Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 136 (Tex. 2012). A successful challenge to evidentiary 

rulings usually requires the complaining party to demonstrate that the judgment turns on the 

particular evidence admitted. Nissan Motor Co. Ltd. v. Armstrong, 145 S.W.3d 131, 144 (Tex. 

2004); City of Brownsville v. Alvarado, 897 S.W.2d 750, 753-54 (Tex. 1995). Whether the 

erroneous admission of evidence is harmful is more a matter of judgment than precise measurement. 

Nissan Motor Co., 145 S.W.3d at 144. In making that judgment, appellate courts look to the role 

the evidence played in the context of the trial and the efforts made by counsel to emphasize the 

erroneous evidence, as well as whether there was contrary evidence that the improperly admitted 

evidence was calculated to overcome. U–Haul Int’l, Inc., 380 S.W.3d at 136.

Objections and Testimony

Before trial, the Department requested that recordings of voice mails left by B.W. for V.H. 

be admitted at trial. According to the Department, these voice mails were made after B.W. 

attempted to strangle V.H., but before his trial on that assault, and were threatening. Further, the 

Department’s counsel stated that the recordings were relevant to the best interest of the child and, 

potentially, would be used for impeachment. 

B.W.’s counsel objected, arguing that these recordings were not provided to him until the 

day before trial and, thus, were not admissible. The Department’s counsel stated that these 

recordings were not provided previously in response to discovery because the Department did not 

have these recordings in its possession or control. According to the Department, these recordings 

were in the possession of the district attorney’s office and the Department was not aware of the 

recordings until B.W.’s criminal trial. At that point, the trial court did not decide whether the voice 

mails should be admitted, although it allowed the Department to discuss the recordings in its 

opening statement. 

At trial, B.W. testified that he left several voice mails for V.H and admitted that these 

recordings were played at his criminal trial. He admitted that these recordings were ―pretty bad‖ 

and that he ―wish[ed] [he] hadn’t of said them.‖ B.W. testified that he was mad when he left the 

voice mails, but he did not threaten to kill anyone, ―[he didn’t] think.‖ He admitted that he said 

whatever was contained in the recordings. B.W.’s attorney did not object to this testimony 

regarding the voice mail recordings.
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During trial, the Department requested the voice mail recordings be admitted. The trial 

court determined that it would allow the recordings to be admitted if the proper foundations were 

laid. B.W.’s counsel objected because copies of the recordings had not been provided to him thirty 

days before the hearing. Therefore, B.W.’s counsel argued, these recordings were inadmissible 

under the discovery rules. Moreover, he stated that the recordings were unduly prejudicial because 

B.W. admitted leaving the voice mails and admitted that they were threatening. Thus, B.W.’s 

counsel stated, playing the recordings would be ―theater and theater alone.‖ The Department’s 

counsel agreed that B.W. admitted to making the recordings but contended that B.W. ―danced 

around‖ admitting that the voice mails were threatening, stating instead that ―he said he was mad.‖ 

The trial court admitted the voice mail recordings. 

At trial, Jessica Halbert, an investigator for the Henderson County Sheriff’s office, stated 

that she was working on a criminal case involving B.W.’s alleged strangulation of V.H. She 

testified that while she was investigating the case, V.H. informed her that multiple messages from 

B.W. had been left on her cellular telephone. According to Halbert, she recorded the messages by 

having V.H. play them on speakerphone in front of a recording device. Halbert identified the 

recording and stated that it was a fair and accurate copy of the voice mails. The Department 

requested that the voice mails be admitted, and B.W.’s counsel objected. The trial court overruled 

counsel’s objections, and the Department published the voice mails before the jury.

After the voice mails were published, Halbert testified that in the first recording, B.W. said 

―bring it on,‖ ―that’s what I’m doing tomorrow‖ and ―you f****d up.‖ She also stated that on the 

second recording, he said ―I’m coming after you, going to light it up.‖ Halbert testified further that 

on the third recording, B.W. said ―I deserve what I get, call the law b***h,‖ and on the fourth 

recording, he said ―the lights are on, doors are open, come on in.‖ She agreed that in the fifth 

recording, B.W. said ―I can’t wait m*****f****r.‖ Halbert believed that these recordings were 

threatening, considering all of the circumstances. B.W.’s counsel did not object to any of Halbert’s 

testimony regarding the content of the voice mail recordings.

Analysis

Even if we assume the voice mail recordings were inadmissible, an error in the admission of 

evidence is harmless if substantially the same evidence is admitted elsewhere without objection.

See Volkswagen of Am., Inc., 159 S.W.3d at 907; Breof BNK Tex., L.P., 370 S.W.3d at 67.
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Further, B.W. must have objected every time the allegedly inadmissible evidence was offered or he 

has waived any complaint about the admission of the evidence. See Lagrone v. State, 942 S.W.2d 

602, 618 (Tex. Crim. App. 1997); Hudson, 675 S.W.2d at 511. From our review of the record, we 

conclude that B.W. failed to make all of the required objections.

B.W. admitted that he left the voice mails for V.H., that he was mad, and that he said 

whatever was in the recordings. Although he testified that the voice mails were ―pretty bad,‖ he did 

not ―think‖ he threatened to kill anyone. Halbert testified that the voice mails were threatening 

under the circumstances, having previously noted that B.W. was being investigated for allegedly 

strangling V.H. She also testified regarding the specific contents of each voice mail message that 

had been published to the jury. B.W. did not object to any of this testimony. Because the evidence 

that B.W. left threatening voice mails for V.H. was admitted without objection, and Halbert

described the contents of the voice mail recordings without objection, any error admitting the voice 

mail recordings is harmless. See Volkswagen of Am., Inc., 159 S.W.3d at 907; Breof BNK Tex., 

L.P., 370 S.W.3d at 67. 

We overrule B.W.’s third issue.

MOTION FOR CONTINUANCE

In his fourth issue, B.W. argues that the trial court abused its discretion by failing to grant 

his motion for continuance after he announced ―not ready‖ for trial. The denial of a motion for 

continuance is reviewed under an abuse of discretion standard. Garner v. Fidelity Bank, N.A., 244 

S.W.3d 855, 858 (Tex. App.—Dallas 2008, no pet.). The denial will be reversed only if the trial 

court’s action was arbitrary, unreasonable, or without reference to any guiding rules and principles.

Id. (citing BMC Software Belg. N.V. v. Marchand, 83 S.W.3d 789, 800 (Tex. 2002)). If a motion 

for continuance is not made in writing and verified, it will be presumed that the trial court did not 

abuse its discretion by denying the motion. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986).

Further, a motion for continuance must include an affidavit stating sufficient cause. TEX. R.

CIV. P. 251. Generally, when a movant fails to comply with Rule 251’s requirement that the motion 

for continuance be ―supported by affidavit,‖ an appellate court must presume that the trial court did 

not abuse its discretion in denying the motion. Villegas, 711 S.W.2d at 626. In other words, if a 
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motion for continuance is not verified or supported by affidavit, we will presume the trial court did 

not abuse its discretion in denying the motion. Garner, 244 S.W.3d at 858.

Here, B.W.’s counsel orally requested a continuance on the day before trial, contending that 

he was ―not ready‖ for trial because B.W. had been arrested for violating a protective order in favor 

of V.H. and counsel had just been given voice mail recordings that B.W. left for V.H. A motion for 

continuance must be made in writing and verified. See Villegas, 711 S.W.2d at 626. However, 

B.W. admitted that his motion was not in writing. Further, when he renewed his objections 

regarding being ―ready‖ on the day of trial, he did not present a written verified motion for 

continuance with a supporting affidavit. Because B.W.’s motion for continuance was not in 

writing, verified, or supported by an affidavit, the trial court did not abuse its discretion in denying 

the motion. See Villegas, 711 S.W.2d at 626; Garner, 244 S.W.3d at 858. Accordingly, B.W.’s 

fourth issue is overruled.

DISPOSITION

Having overruled V.H.’s five issues and B.W.’s four issues, we affirm the judgment of the 

trial court.

 

___BRIAN HOYLE__ 

 Justice

Opinion delivered June 25, 2013.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(PUBLISH)
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COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JUNE 25, 2013

NO. 12-13-00026-CV

IN THE INTEREST OF B.G.W., A CHILD

 

 Appeal from the 3rd Judicial District Court

 of Henderson County, Texas. (Tr.Ct.No. 2009-C-017)

 

THIS CAUSE came to be heard on the appellate record and briefs filed 

herein, and the same being considered, it is the opinion of this court that there was no error in the 

judgment.

It is therefore ORDERED, ADJUDGED and DECREED that the judgment of 

the court below be in all things affirmed, and that this decision be certified to the court below for 

observance.

Brian Hoyle, Justice.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.