COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-14-00135-CV 

CHAD LEE S. APPELLANT

V.

MELINDA A. S. APPELLEE 

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FROM THE 158TH DISTRICT COURT OF DENTON COUNTY

TRIAL COURT NO. 2012-20066-158

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MEMORANDUM OPINION1

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Appellant Chad Lee S. (Father) appeals from the trial court’s final decree 

of divorce. After a trial on the conservatorship issues, the jury found that 

Appellee Melinda A. S. (Mother) should be the sole managing conservator of 

their child and that Father should not be possessory conservator. The trial court 

heard the remaining issues and entered judgment conforming to the jury’s 

 

1See Tex. R. App. P. 47.4.
2

verdict. In four issues, Father challenges the trial court’s judgment with respect 

to the conservatorship of their child. We affirm.

I. Background

Mother and Father began dating in the spring of 2008. They married in 

March 2011 and had one child in October 2011 (the Child). On January 25, 

2012, Mother filed a divorce petition, seeking sole managing conservatorship of 

the Child. Mother also filed an application for protective order requesting, among 

other things, that the trial court prohibit Father from communicating directly with 

Mother or the Child and from coming within 200 feet of them.

Father filed a general denial and counterpetition for divorce and temporary 

orders. On February 8, 2012, the trial court entered agreed interim orders 

enjoining both parties from communicating with each other directly and from 

going within 200 feet of the other party’s residence or place of employment. The 

agreed temporary orders also enjoined Father from taking or attempting to take 

the Child from Mother and ordered that the Child remain in Mother’s exclusive 

possession and control pending a temporary hearing.

After a hearing on February 29, 2012, the trial court entered temporary 

orders appointing both parties as temporary joint managing conservators of the 

Child, with Mother having the exclusive right to determine the Child’s primary 

residence. The trial court awarded Father possession of the Child for two hours 

every Tuesday and Thursday and for four hours every Sunday. The temporary 
3

orders specified that the Child was to be surrendered to Father at Mother’s 

residence and that Father was to return the Child to Mother at her residence.

On October 26, 2012, Father filed a motion to modify the temporary orders, 

alleging that Mother and Mother’s parents were videotaping the exchanges of the 

Child “while attempting to provoke a negative reaction from [Father]. As such, 

the present orders relating to the exchange of the [C]hild have become 

unworkable and are no longer in the best interest of the [C]hild.” Father asked 

the trial court to order the parties to exchange possession at a police station 

rather than Mother’s residence. Father amended his motion to modify on April 

24, 2013, requesting that the trial court allow Father to designate a competent 

adult to pick up the Child because Mother would not allow anyone other than 

Father to pick up the Child and increase his periods of possession and access 

because Mother refused to allow him possession and access to the Child beyond 

the periods awarded to Father in the temporary orders.

After a hearing on April 29, 2013, the trial court entered modified 

temporary orders increasing Father’s periods of possession to four hours on 

Tuesdays and Thursdays and to eight hours on Sundays. Both parties were 

permitted to designate a competent adult to pick up and drop off the Child. The 

modified temporary orders also outlined a procedure for surrender and return of 

the Child at Mother’s residence that prevented Mother and Father from having 

any direct contact with each other.
4

Over the course of five days in August 2013, the parties tried the 

conservatorship issue to a jury. Mother’s live petition requested that she be 

appointed as sole managing conservator of the Child and that Father not be 

named as possessory conservator. The jury found that Mother should be 

appointed managing conservator and that Father should not be possessory 

conservator.

Immediately after the jury returned the verdict, the trial court announced 

that in light of the jury’s findings, it was suspending all temporary orders and

entered an order stating that Father not have possession of or access to the 

Child pending the entry of a final divorce decree. Father moved for a judgment 

non obstante verdicto (JNOV), asserting that the evidence was legally and 

factually insufficient to support the jury’s verdict on possessory conservatorship 

and that the trial court erred in revoking Father’s right to possession of and 

access to the Child based on that finding. See Tex. R. Civ. P. 301. The trial 

court denied the motion.

The trial court heard the child support and property division issues on 

September 17, 2013. On October 29, 2013, the trial court entered a final divorce 

decree, which incorporated the jury’s verdict, denied Father conservatorship of, 

access to, and possession of the Child, ordered Father to pay child support, and

divided the marital property.

Father timely filed a motion for new trial, arguing in part that family code 

sections 105.002(c) and 153.191 were unconstitutional as applied to him. See
5

Tex. Fam. Code Ann. §§ 105.002(c), 153.191 (West 2014); Tex. R. Civ. P. 320, 

329b. He contended that 

[b]ecause of the [parental] right’s elevated status, the standard of 

proof is elevated from “preponderance of the evidence” to “clear and 

convincing evidence.” . . . 

. . . . 

The application of Section 153.191 to [Father] in this case and 

the court’s ruling is a denial of constitutional rights of due process in 

that the court’s ruling operates as a de facto termination of the 

parental rights of [Father] to care for, control, educate and manage 

the upbringing of his child with a lower standard of proof than that 

required by Section 161.001 Texas Family Code and the United 

States Constitution, which requires proof by clear and convincing 

evidence that a parent has committed any of a number of acts listed 

in the statute.

On January 17, 2014, the trial court granted Father a new trial as to 

conservatorship on the sole ground that Father’s

due process rights under the 14th Amendment of the United States 

Constitution and Article I, Section 19 of the Texas Constitution were 

violated when the jury did not name [him] a possessory conservator 

in Question #5 of the jury charge, creating a de facto termination 

under a preponderance of the evidence standard, rather than a clear 

and convincing standard.2

On the same date, the trial court also entered an interim order granting Father

limited access to the Child.

Mother filed a petition for writ of mandamus in this court, asserting that the 

trial court acted arbitrarily and abused its discretion by disregarding the jury’s 

 

2

The trial court signed an identical order granting Father’s motion for new 

trial on January 24, 2014.
6

verdict and ordering a new trial because the trial court’s stated reason for 

granting a new trial was legally inappropriate. See In re United Scaffolding, Inc., 

377 S.W.3d 685, 688–89 (Tex. 2012) (orig. proceeding) (holding a trial court 

does not abuse its discretion if its stated reason for granting a new trial is legally 

appropriate and is specific enough to indicate that the trial court “derived the 

articulated reasons from the particular facts and circumstances of the case at 

hand”). We agreed with Mother, stating

While the trial court’s reason here is specific, it is not a legally 

appropriate reason. The trial court’s order granting a new trial based 

on Father’s “de facto” termination argument violates section 

105.002(c)(1)(C) of the family code, which provides that a trial court 

may not “contravene a jury verdict” on the issue of the appointment 

of a possessory conservator. The order also ignores the different 

burdens of proof in custody and termination cases. Finally, the trial 

court’s order overlooks the law that allows a parent, even a 

nonconservator like Father, to seek modification of a 

conservatorship order and that gives a trial court discretion to grant 

modification if it is in the child’s best interest and the parent’s or 

child’s circumstances have materially and substantially changed 

since the order was rendered. It is this law that differentiates Father 

from parents whose relationships with their children have been 

permanently severed, and it is this law that provides Father and 

other similarly situated parents due process.

In re M.S., No. 02-14-00079-CV, 2014 WL 1510059, at *2 (Tex. App.—Fort 

Worth Apr. 17, 2014, orig. proceeding [mand. denied]) (mem. op.) (citations 

omitted). We granted Mother’s petition and directed the trial court to vacate its 

orders granting Father’s motion for new trial as well as its interim order granting 

Father access to the Child. See id. The trial court promptly vacated the orders 
7

and re-entered its original final divorce decree. This decree is the subject of this 

appeal.

II. Denial of Father’s Motion for JNOV

In the first part of his first issue, Father contends the trial court erred by 

denying his motion for JNOV because family code section 105.002(c) did not 

prevent the trial court from contravening the jury’s verdict not appointing Father 

as possessory conservator. See Tex. Fam. Code Ann. § 105.002(c). Section 

105.002(c)(1)(C) provides that a trial court “may not contravene a jury verdict on 

the issue[] of . . . the appointment of a possessory conservator.” Id.

§ 105.002(c)(1)(C). Father argues that because “non-appointment is not 

addressed in the statute, the trial court was free to contravene the jury’s finding.”

“Statutory construction is a legal question that we review de novo, 

ascertaining and giving effect to the Legislature’s intent as expressed by the plain 

and common meaning of the statute’s words.” F.F.P. Operating Partners, L.P. v. 

Duenez, 237 S.W.3d 680, 683 (Tex. 2007) (citing Tex. Dep’t of Transp. v. City of 

Sunset Valley, 146 S.W.3d 637, 642 (Tex. 2004)). Section 105.002(c)(1)(C) 

states that the trial court may not contravene a jury verdict on the issue of the 

appointment of a possessory conservator. See Tex. Fam. Code Ann. 

105.002(c)(1)(C). The “issue[] of . . . the appointment of a possessory

conservator” necessarily includes both the appointment and “non-appointment” of 

a parent as possessory conservator. The jury decided this issue against Father. 

Thus, under the plain language of section 105.002(c)(1)(C), the trial court could 
8

not grant Father’s motion for JNOV. See M.S., 2014 WL 1510059, at *2 

(concluding that order granting Father a new trial based on “de facto” termination 

argument violated section 105.002(c)(1)(C)). Accordingly, we overrule this 

portion of Father’s first issue.

III. Sufficiency of the Evidence Supporting 

the Jury’s Conservatorship Findings

In the latter portion of his first issue and in his second issue, Father argues 

there is no evidence to support the jury’s findings that he should not be appointed 

joint managing conservator or possessory conservator of the Child.

A. Standard of Review

When, as here, no objection was made to the jury charge, the sufficiency 

of the evidence is reviewed in light of the charge submitted. Romero v. KPH 

Consolidation, Inc., 166 S.W.3d 212, 221 (Tex. 2005). We may sustain a legal 

sufficiency challenge only when (1) the record discloses a complete absence of 

evidence of a vital fact; (2) the court is barred by rules of law or of evidence from 

giving weight to the only evidence offered to prove a vital fact; (3) the evidence 

offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence 

establishes conclusively the opposite of a vital fact. Uniroyal Goodrich Tire Co. 

v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998), cert. denied, 526 U.S. 1040 

(1999); Robert W. Calvert, “No Evidence” and “Insufficient Evidence” Points of 

Error, 38 Tex. L. Rev. 361, 362–63 (1960). In determining whether there is 

legally sufficient evidence to support the finding under review, we must consider 
9

evidence favorable to the finding if a reasonable factfinder could and disregard 

evidence contrary to the finding unless a reasonable factfinder could not. Cent. 

Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007); City of Keller 

v. Wilson, 168 S.W.3d 802, 807, 827 (Tex. 2005).

Anything more than a scintilla of evidence is legally sufficient to support the 

finding. Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996); 

Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex. 1996). When the evidence offered 

to prove a vital fact is so weak as to do no more than create a mere surmise or 

suspicion of its existence, the evidence is no more than a scintilla and, in legal 

effect, is no evidence. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 

2003), cert. denied, 541 U.S. 1030 (2004) (citing Kindred v. Con/Chem, Inc., 650 

S.W.2d 61, 63 (Tex. 1983)). More than a scintilla of evidence exists if the 

evidence furnishes some reasonable basis for differing conclusions by 

reasonable minds about the existence of a vital fact. Rocor Int’l, Inc. v. Nat’l 

Union Fire Ins. Co., 77 S.W.3d 253, 262 (Tex. 2002).

The burden of proof in conservatorship cases is by a preponderance of the 

evidence. Tex. Fam. Code Ann. § 105.005 (West 2014); see In re W.M., 172 

S.W.3d 718, 724 (Tex. App.—Fort Worth 2005, no pet.) (“The burden of proof in 

conservatorship cases, as opposed to termination cases, is a preponderance of 

the evidence.”).
10

B. Appointment of Joint Managing Conservator

Family code section 153.131(a) provides that both parents shall be 

appointed as joint managing conservators of a child unless the court finds that 

appointment of the parents would not be in the best interest of the child because 

the appointment would significantly impair the child’s physical health or emotional 

development. Tex. Fam. Code Ann. § 153.131(a) (West 2014). A rebuttable 

presumption exists that it is in a child’s best interest for his parents to be named 

his joint managing conservators. Id. § 153.131(b) (West 2014). Father asserts 

that the jury’s finding that he should not be appointed as joint managing 

conservator implied that Mother rebutted the presumption that he should be 

appointed as such. Father argues this finding is not supported by the evidence. 

A finding of a history of family violence removes the presumption that 

appointment of a child’s parent as joint managing conservator is in the child’s 

best interest. Id. With regard to the appointment of managing conservator, the 

jury was instructed in pertinent part as follows:

In determining whether to appoint a party sole or joint 

managing conservator, you shall consider evidence of the intentional 

use of abusive physical force by a party against his or her spouse, 

against a parent of the child, or against any person younger than 

eighteen years of age committed within a two-year period preceding 

the filing of the suit or during the pendency of the suit.

A person may not be appointed a joint managing conservator 

if that person has a history or pattern of past or present child neglect 

or of physical or sexual abuse directed against a parent, a spouse, 

or a child.
11

Mother testified that Father was physically abusive towards her both prior 

to and during their marriage, but as to the events occurring prior to their 

marriage, Mother did not specify when they occurred.3 Mother testified that 

during an argument shortly after their wedding ceremony in Mexico in March 

2011, Father pushed her and pushed at her stomach even though she was 

pregnant with the Child. Mother further stated that Father never hit her during 

her pregnancy, but he pushed her, pushed at her stomach, and threw things at 

her. Shortly after Mother gave birth to the Child, Father bit Mother during an 

argument over whether Father should take the Child to a birthday party. Mother 

was holding the Child at the time, and Father attempted to pull the Child away 

from her.4

Mother testified that in the eight months from the beginning of the marriage 

until they separated and Mother filed for divorce, Father physically assaulted her 

“too many [times] to even count.” Father left bruises and bite marks on Mother. 

Mother’s friend, K.M., testified that while Mother and Father were married but 

before they were separated, she observed bruises on Mother’s arm. After 

Mother and Father separated, Mother told K.M. that Father had caused the 

bruises. Mother never told K.M. that Father hit her. But prior to the separation, 

 

3Before they were married, Father pushed and shoved her, pushed her to 

the ground, raised his fist to her and said, “Don’t make me do something I will 

regret,” locked her in her bedroom, and pushed her out of his vehicle.

4Mother’s two children from a previous marriage, who lived with Mother 

and Father after their marriage, witnessed this event, as well as other instances 

of Father physically abusing Mother after the marriage.
12

Mother told K.M. that she was scared of Father and talked about “some of the 

physical abuse.” K.M. never saw Father become physically violent with Mother, 

nor did she ever see or hear him threaten Mother.

Mother further testified that she fled the marital residence in January 2012 

after an argument over the telephone with Father during which he threatened, 

“I’m leaving work and this time I’m going to come home and show you what I 

mean.” Mother interpreted this as a physical threat and left before Father got 

home. Mother spent the night at her parents’ house. During the early morning 

hours, Father began banging on the door and yelling. Mother cracked open the 

door, and Father barged into the house. He pushed Mother, yelled, called her 

names, and accused her of hijacking his son. Mother was afraid and asked 

Father to leave, but he refused until she called 911.

Two days later, Mother returned to the marital residence because Father 

promised to change his behavior and because she wanted to save their 

marriage. Mother testified that Father’s behavior was erratic and controlling; he 

dictated how Mother was to sit and how she was to hold his hand and would not 

allow Mother to leave the residence alone. That night, Mother chose to sleep in 

one of her older children’s rooms upstairs so she could be close to the Child. 

Father woke Mother in the middle of the night, angry that she was not sleeping 

with him in his bed and yelling at her that she was to be down in his room and “to 

do what she was told.” When Mother refused, Father continued to yell at her and 

pushed her. Mother was fearful and called the police. The police arrived and 
13

waited with Mother while she packed some items before leaving the marital 

residence for the last time.

Mother testified that Father never physically harmed her children when 

they lived with Father. But she also testified that Father spanked her oldest child 

so hard that it left a welt. Without elaboration, she stated that Father was very 

rough with the Child.

Mother admitted that she married Father despite his abusive behavior. 

She also admitted that she never called the police prior to their separation and 

that she never brought charges against Father. Father denied that he ever hit or 

pushed Mother and testified that Mother often instigated physical violence in the 

home. According to Father, Mother pushed or charged him using the Child as a 

buffer “dozens” of times.

“Jurors are the sole judges of the credibility of the witnesses and the 

weight to give their testimony. They may choose to believe one witness and 

disbelieve another.” City of Keller, 168 S.W.3d at 819 (footnote omitted). Here, 

the jury could have believed Mother’s testimony regarding Father’s physical 

abuse and disbelieved Father. There was more than a scintilla of evidence that 

Father had a history or pattern of physical abuse directed against Mother. 

Therefore, we hold that the evidence was legally sufficient to support the jury’s 

finding that Father should not be appointed as joint managing conservator of the 

Child.
14

C. Appointment of Possessory Conservator

Family code section 153.191 provides that a parent who is not appointed 

as a sole or joint managing conservator shall be appointed as a possessory 

conservator unless the court finds that the appointment is not in the best interest 

of the child and that parental possession or access would endanger the physical 

or emotional welfare of the child. Tex. Fam. Code Ann. § 153.191. Father 

asserts that the jury’s finding that he should not be appointed as possessory 

conservator implies that the jury found that such an appointment was not in the 

Child’s best interest and that Father’s possession or access would endanger the 

Child’s physical or emotional welfare. Father argues the evidence is legally 

insufficient to support these findings.

The jury was instructed on possessory conservatorship as follows:

A parent may not be allowed access to a child if the parent 

has a history or pattern of committing family violence during the two 

years preceding the date of the filing of the suit or during the 

pendency of the suit unless awarding access to the child would not 

endanger the child’s physical health or emotional welfare and would 

be in the child’s best interest.

“Family violence” means an act by a member of a family 

against another member of the family that is intended to result in 

physical harm.

. . . .

“Possessory conservator of a child” means the person or

persons appointed to have possession of or access to the child at 

specified times and upon certain conditions. In addition to the rights 

and duties listed above that a parent named a conservator has at all 

times or during periods of possession of the child, subject to any 

limitations imposed by court order on those rights and duties, a 
15

parent appointed possessory conservator has any other right or duty 

of a managing conservator expressly granted to that parent in the 

decree appointing that parent a possessory conservator.

. . . .

If, in answer to Question 1, you have not named [Father] 

managing conservator of the child, then answer Question 5. 

Otherwise, do not answer Question 5.

QUESTION 5:

Should [Father] be named possessory conservator of the child?

A parent who is not appointed managing conservator shall be 

appointed possessory conservator unless the appointment is not in 

the best interest of the child and possession or access by the parent 

would endanger the physical or emotional welfare of the child. A 

parent who is not appointed managing or possessory conservator 

may be ordered to perform other parental duties, including paying 

child support. Therefore, answer the following question “Yes” unless 

you find from a preponderance of the evidence that appointment of 

[Father] is not in the best interest of the child and that possession or 

access by [Father] would endanger the physical or emotional welfare 

of the child. 

Answer “Yes” or “No.”

The jury answered “no.”

Dr. Kelly Goodness, who was appointed by the trial court to evaluate 

Father’s psychological condition, testified that in 1993, Father incurred a frontal 

lobe brain injury that affects his behavior. The injury causes Father to act 

impulsively, inhibits his memory capability and his ability to interpret people’s 

body language and what they are saying, and prevents him from fully recognizing 

his deficits and from “presenting favorably” to others, which likely affects his 

ability to maintain steady employment. Dr. Goodness also stated that Father has 
16

problems with impulse and anger control, which likely played a role in his criminal 

history, which includes a revocation of probation for failing a drug test and

convictions for driving while intoxicated, resisting arrest, burglary of a habitation,

assault, possession of prohibited weapons, and interfering with an emergency 

call. According to Dr. Goodness, Father’s deficit may affect his ability to parent 

because he may have a lower frustration tolerance when the Child acts out or 

cries, have trouble remembering what needs to be done, be quick to anger, use 

bad language, and lack problem-solving abilities.

Dr. Goodness testified that Father’s brain deficit is not huge, but it must be 

considered when developing a parenting plan. Both parents should participate in 

the parenting of a child unless it is detrimental to the child, and Dr. Goodness 

stated that she believed Father “needs the opportunity to parent his child. His 

deficits are not significant enough that he should be prevented from doing that.”

Dr. Goodness testified that Father showed signs of recovery from his brain 

injury but had not made a complete recovery; his condition probably will not 

improve. Father’s mother does not accept that Father has any deficits. Father 

also does not believe or recognize he has any deficits remaining from his brain 

injury.

Dr. Goodness recommended that Father consult with a psychiatrist for 

medication and see a counselor once or twice a month. While counseling would 

not eradicate Father’s lack of insight, his difficulty recognizing social cues, or his 

low-frustration tolerance, it might help him in recognizing and addressing these 
17

issues. Dr. Goodness referred Father to a licensed professional counselor in her 

office, but Father did not follow up on her recommendation. She had not seen 

Father since she completed her evaluation and filed her report with the court, and 

Father did not follow her suggestion that he make an appointment with her office 

to review his test results.

Mother admitted that Father had bonded with and had a close relationship 

with her two children from her previous marriage. Father helped with the day-today care of the children and played with them. Mother testified that Father “did a 

lot” for the children and that “she trusted [Father] to be heavily involved” in her 

children’s lives, but she did not want him heavily involved in raising the Child. 

Several Father’s Day and anniversary cards in which Mother expressed her love 

and appreciation for Father were admitted into evidence. Mother stated that she 

gave these cards to Father because she wanted their relationship to work. 

Mother testified that over time, she became fearful of Father and became 

more fearful of him after the marriage because Father’s behavior escalated. In 

addition to being physically abusive, Father was emotionally abusive. For 

example, during their altercation in Mexico, Father told Mother she could do what 

she wanted with the baby and threatened to leave her there. After the marriage, 

Father would call Mother names in front of her children and tell her children that 

Mother was ungrateful, selfish, and a horrible “C word.”5

 

5

It is apparent from Mother’s testimony that Father used the actual term

when referring to her.
18

Father had frequent emotional outbursts during which he would yell and 

curse at the children and belittle Mother. During a disagreement over her 

children’s safety while riding four-wheelers with Father, he told Mother to “do as 

you’re told, get the F out, [and] I’ll do what I want.” Mother would call her parents 

when she and Father argued, and Father told Mother on several occasions, “if

you’re going to call your dad, then I’m going to shoot him for trespassing. Tell 

your dad I’m going to shoot your dad.” When Mother fled the marital residence, 

Father told her she needed a shock collar like a dog.

Mother’s parents’ neighbor, E.H., was inside their house during some of 

the custody exchanges. On at least two or three occasions, E.H. heard Father 

tell Mother that if her father were there, Father would kill him.

J.S., who lives down the street from Mother’s parents, witnessed Father 

arriving at Mother’s parents’ house to pick up the Child. Father came speeding 

up the street and grabbed the Child (who was three months old at the time) from 

Mother’s arms. The Child was screaming, and when Mother told Father that the 

Child needed his pacifier, Father responded, “No, he doesn’t, bitch.” Mother did 

not respond. Father put the Child into the baby seat in his car and, without taking 

any time to buckle him in, slammed the car door and sped off.

Mother’s father, C.C., recounted two incidents in which Father threatened 

him. C.C. was out on a walk around his neighborhood when he encountered 

Father running in the opposition direction. Father turned around and began 

walking beside C.C. C.C. felt scared. Father commented that C.C. did not have 
19

his phone with him, called C.C. and Mother names, and told C.C., “If I ever—if 

you ever stiff me again, I’m going to bash your head in.” C.C. started walking 

towards a nearby school and told Father that he was going to call the police 

when he got there. Father ran off.

C.C. also recounted an incident during which Father followed C.C. and 

Mother’s mother while they were driving in their neighborhood. Afraid, C.C. 

pulled into a golf course maintenance area where he knew other people would 

be. As Father drove by, he rolled down his window and said to C.C., “What’s up, 

asshole?” C.C. waited for about ten minutes before leaving the golf course to 

return home. Father immediately started following the couple again.

Father recorded part of this incident, and the video was played to the jury. 

The video begins as C.C. is turning out of the golf course maintenance area and 

onto the street. It appears from the video that Father was waiting for C.C. to 

leave. The video shows Father following C.C. very closely after C.C. left the golf 

course. Father, in his narration on the video, claims the video is an example of 

how C.C. follows him around town and harasses him. On cross-examination, 

Father admitted that he drove by the golf course and called C.C. an asshole, and 

he insisted that the video exemplified how C.C. followed him and harassed him.

Father testified that he loved Mother and her children so much that he sold 

his interest in his family’s ranch—against his dying father’s wishes—to purchase 

a home for them. Father confirmed that he helped in the day-to-day care of 
20

Mother’s children and played with them. He also attended their sports practices 

and games and parent-teacher conferences and PTA meetings with Mother. 

Father admitted to the criminal history described by Dr. Goodness. Most 

recently, Father received citations for operating a boat with two children under 

the age of thirteen (his nieces) onboard who were not wearing life jackets. He 

admitted to using illegal drugs as an adult, including marijuana, 

methamphetamine, cocaine, and mushrooms. Father also recounted the events 

leading up to his assault conviction. When Father and a friend were out driving 

one day, they saw R.B.—a man who allegedly raped Father’s sister thirteen 

years earlier but was not charged—outside of R.B.’s home. Father got out of his 

car and assaulted R.B. Father admitted that he initiated contact with R.B. and 

said that pent-up anger led to the assault.

Father also admitted that he engaged in behavior designed to alienate the 

Child from Mother and her family by speaking negatively about Mother in front of 

the Child. Two videos of custody exchanges were played for the jury. In the first, 

when Mother handed the Child to Father, he remarked, “You have one of your 

Mommy’s cold sores, it looks like.” As he walked to his car, Father asked the 

Child, “Did Mommy give you herpes?” Father then yelled from the curb, “Is it 

herpes, [Mother]? Do you know? Have you had it checked?” In the second, as 

he took the Child to his car, he asked, “Are you going to . . . meet your new 
21

Mommy?”6and tells the Child, “Say goodbye to those people,” i.e., Mother and 

Mother’s family.

While Father denied Mother’s accusations of physical and emotional 

abuse, he admitted to having physical altercations with her in the past, as well as 

during some of the custody exchanges. He denied that any of the physical 

altercations involved him pushing Mother away or pulling the Child away from 

Mother.

The jury viewed video recordings of some of the custody exchanges. In 

one, Father was returning the Child to Mother. Mother reached for the Child 

repeatedly, but Father kept backing away and pushed Mother away with his 

elbow. The Child started to cry. Father denied that the video showed him 

elbowing Mother away.

The next video also showed Father returning the Child to Mother. Mother 

reached for the Child repeatedly, and Father pushed her away while asking 

about the Child’s diaper rash. The Child started to cry. C.C. was also present. 

After Father eventually handed the Child to Mother, Father advanced towards 

C.C. and said, “[C.C.], go inside. Quit threatening me.” C.C. remained stationary 

and said, “I’m not threatening you, [Father].” Father kept advancing towards C.C. 

and said, “Quit threatening me. Please get out, please, please get out of my 

face.” Father denied that the video showed him pushing Mother and acting 

 

6

The Child’s “new mommy” was Father’s longtime girlfriend.
22

aggressively. Father testified that he thought his conduct was appropriate in both 

videos. 

Father’s mother testified that Father was “patient and kind and loving” with 

the Child. During his periods of possession, Father was observant of the Child’s 

needs, insisted that the Child eat healthy foods, and took care of the Child, 

including changing his diapers. Father also played with the Child, took him 

swimming and boating, and read to him. She testified that the Child had bonded 

with Father, loved Father, followed Father around during visits, and wanted only 

Father to hold him. She had no concerns about the way Father cared for the 

Child, but she was concerned about Mother’s parenting skills because of her 

volatile behavior.

Father’s mother testified that Father sought counseling after receiving Dr. 

Goodness’s recommendation but did not know if he was still attending counseling 

or for how long he did so. She confirmed that Father was not seeking medication 

as Dr. Goodness recommended.

Because “best interest” and “endanger” were undefined in the charge, we 

look to the terms’ commonly understood meanings in our sufficiency review. See 

Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000); EMC Mortg. Corp. v. Jones, 

252 S.W.3d 857, 869 (Tex. App.—Dallas 2008, no pet.). A common meaning of 

“best” is “providing or offering the greatest advantage, utility, or satisfaction,” and 

the common meaning of “interest” is “the state of being concerned or affected 

esp. with respect to advantage or well-being.” Webster’s Third New International 
23

Dictionary 208, 1178 (2002). “Endanger” is defined as “imperil or threaten 

danger to.” Id. at 748.

Again, “[j]urors are the sole judges of the credibility of the witnesses and 

the weight to give their testimony. They may choose to believe one witness and 

disbelieve another.” City of Keller, 168 S.W.3d at 819 (footnote omitted). Father 

loves, has bonded with, and wants to parent the Child, and Dr. Goodness 

testified that Father should be allowed to parent the Child. But Dr. Goodness 

also testified that Father did not recognize that he had a mental deficit, and the 

evidence showed that Father was not following her recommendations regarding 

counseling and medication. The evidence showed that Father had a volatile 

personality, was quick to anger, lacked impulse control, and was unable or 

unwilling to recognize that his behavior was physically aggressive, even when 

confronted with video recordings of the incidents. Father had a criminal history, 

including assault and operating a boat without ensuring that the children onboard 

were wearing life vests, and had a history of physically and emotionally abusing 

Mother, sometimes in front of the Child. Father admitted to engaging in specific 

instances of behavior designed to alienate the Child from Mother and her family, 

videos of which were played for the jury. 

Applying the applicable standard of review, we conclude that there was 

more than a scintilla of evidence to support the jury’s conclusion that 

appointment of Father as possessory conservator was not in the best interest of 

the Child and that access to or possession by Father would endanger the Child’s 
24

physical or emotional welfare. Accordingly, we overrule the remainder of 

Father’s first issue and his second issue.

IV. Father’s Access to and Possession of the Child

In his third issue, Father asserts that even if family code section 105.002(c) 

prevented the trial court from contravening a jury verdict and regardless of 

whether the jury appointed Father as possessory conservator, the trial court was 

not prohibited from granting Father access to or possession of the Child. Section 

105.002(c)(1) entitles a party to a jury verdict on the issue of appointment of a

possessory conservator, see Tex. Fam. Code Ann. § 105.002(c)(1)(C), but 

section 105.002(c)(2)(B) prohibits a trial court from submitting a jury question on 

the issue of a specific term or condition of possession of or access to a child, id.

§ 105.002(c)(2)(B). Father argues the trial court abused its discretion by denying 

him access to or possession of the Child based upon the jury’s finding that 

Father should not be appointed as possessory conservator, see id., thereby 

imposing restrictions or limitations on his possession and access that exceed 

what is required to protect the Child’s best interest, see id. § 153.193 (West 

2014). Father further argues that a “complete denial of access should be rare,” 

In re Walters, 39 S.W.3d 280, 287 (Tex. App.—Texarkana 2001, no pet.), and 

reserved only for “the most extreme of circumstances,” In re E.N.C., No. 03-07-

00099-CV, 2009 WL 638188, at *15 (Tex. App.—Austin Mar. 13, 2009, no pet.) 

(mem. op.).
25

A. Standard of Review

The best interest of the child shall always be the primary consideration of 

the court in determining the issues of possession of and access to the child. Tex. 

Fam. Code Ann. § 153.002 (West 2014). We review a trial court’s order 

regarding possession and access for an abuse of discretion. See Green v. 

Green, 850 S.W.2d 809, 811–12 (Tex. App.—El Paso 1993, no writ). A trial court 

abuses its discretion if the court acts without reference to any guiding rules or 

principles, that is, if the act is arbitrary or unreasonable. Low v. Henry, 221 

S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 

2004). Under an abuse of discretion standard, challenges to the legal or factual 

sufficiency of the evidence are not independent grounds of error; rather, they are 

simply factors in assessing whether the trial court abused its discretion. Gardner 

v. Gardner, 229 S.W.3d 747, 751 (Tex. App.—San Antonio 2007, no pet.).

In determining whether there has been an abuse of discretion because the 

evidence is legally or factually insufficient to support the trial court’s decision, we 

engage in a two-pronged inquiry: (1) Did the trial court have enough information 

upon which to exercise its discretion; and (2) did the trial court err in applying its 

discretion? W.M., 172 S.W.3d at 725; In re T.D.C., 91 S.W.3d 865, 872 (Tex. 

App.—Fort Worth 2002, pet. denied). The traditional sufficiency review comes

into play with regard to the first question. W.M., 172 S.W.3d at 725; T.D.C., 91 

S.W.3d at 872. With regard to the second question, we determine, based on the 
26

elicited evidence, whether the trial court made a reasonable decision. W.M., 172 

S.W.3d at 725; T.D.C., 91 S.W.3d at 872.

B. Analysis

The final decree stated that Father “shall not exercise, or attempt to 

exercise, possession of or access to the [Child].” The trial court has wide latitude 

to determine whether a parent should have possession of and access to a child, 

and we should not disturb a reasonable decision made within its discretion. See 

In re J.E.P., 49 S.W.3d 380, 386 (Tex. App.—Fort Worth 2000, no pet.). The 

family code mandates that “the terms of an order that denies possession of a 

child to a parent or imposes restrictions or limitations on a parent’s right to 

possession of or access to a child may not exceed those that are required to 

protect the best interest of the child.”7 Tex. Fam. Code Ann. § 153.193. While a

jury may determine conservatorship issues, the trial court has the discretion to 

determine the specific terms and conditions of access and possession.8 See id.

 

7Even though section 153.193 does not envision a complete denial of 

access, “a severe restriction or limitation, even one that amounts to a denial of 

access, is permissible if it is in the best interest of the child” because the best 

interest of the child is the primary consideration in determining issues of 

possession and access. In re Walters, 39 S.W.3d 280, 286 n.2 (Tex. App.—

Texarkana 2001, no pet.) (citing Tex. Fam. Code Ann. § 153.002).

8During oral argument, Mother argued that section 153.193 did not apply 

because the section is under a subchapter entitled “Parent Appointed as 

Possessory Conservator.” Thus, in order for the limitations in section 153.193 to 

apply, Father must have been appointed as possessory conservator. But the 

language of section 153.193 does not limit its application to parents appointed as 

possessory conservators. Compare Tex. Fam. Code Ann. § 153.193 (“The terms 

of an order that denies possession of a child to a parent or imposes restrictions 
27

§§ 105.002(c)(2)(B); 153.193; cf. Walters, 39 S.W.3d at 290 (holding parent was 

only entitled to a jury verdict on conservatorship). 

Father contends the trial court abused its discretion because there was no 

evidence to support the trial court’s decision to deny Father access to or 

possession of the Child. He points out that orders completely denying a parent 

access to a child when there are no extreme grounds to support the order are 

frequently reversed and remanded for the trial court’s reconsideration and 

determination of the appropriate amount and type of access and any necessary 

conditions. See, e.g., Fish v. Lebrie, No. 03-09-00387-CV, 2010 WL 5019411, at 

*8–11 (Tex. App.—Austin Dec. 10, 2010, no pet.) (mem. op.); E.N.C., 2009 WL 

638188, at *15–18; Walters, 39 S.W.3d at 287. He urges us to do the same 

here. The primary cases relied upon by Father, however, all concern parents 

who were appointed as conservators. See Fish, 2010 WL 5019411, at *1 (stating 

that father was joint managing conservator); E.N.C., 2009 WL 638188, at *14 

(stating that mother was possessory conservator); Walters, 39 S.W.3d at 287 

(“[T]he trial court appointed Deborah possessory conservator, which implies a 

 

or limitations on a parent’s right to possession of or access to a child may not 

exceed those that are required to protect the best interest of the child.”) with id. 

§ 153.192(a) (West 2014) (“Unless limited by court order, a parent appointed as 

possessory conservator of a child has the rights and duties provided by 

Subchapter B and any other right or duty expressly granted to the possessory 

conservator in the order.”) and id. § 153.192(b) (West 2014) (“In ordering the 

terms and conditions for possession of a child by a parent appointed possessory 

conservator, the court shall be guided by the guidelines in Subchapter E.”). The 

heading of a subchapter does not limit or expand the meaning of a statute. Tex. 

Gov’t Code Ann. § 311.024 (West 2013).
28

finding that any danger she poses to Christopher’s physical or emotional welfare 

can be remedied by an order that restricts her access or possession.”). There is 

a distinction between cases in which the trial court appoints a parent as a 

conservator but denies the parent any possession of and access to the child and 

a case such as this one in which the jury finds that the parent should not be 

appointed as possessory conservator, implicitly finding that possession and 

access would endanger the child’s physical or emotional welfare and are not in 

his best interest.9 

Here, the jury found that Father should not be appointed as possessory 

conservator, and as we explained above, the evidence was legally sufficient to 

support the jury’s implicit findings that appointment of Father as possessory 

conservator was not in the Child’s best interest and that Father’s possession and 

access would endanger the Child’s physical or emotional welfare. The trial court 

 

9Green is the only case we have found in which an appellate court affirmed 

the trial court’s complete denial of access in the context of a divorce. See 850 

S.W.2d at 810–11, 813. Unlike the cases relied upon by Father, the father in 

Green was not appointed as conservator. Id. at 811. The appellate court 

concluded that the evidence was legally and factually sufficient to support the 

trial court’s finding that it was in the child’s best interest not to appoint the father 

as possessory conservator and not to give him access to or possession of the 

child. Id. at 812–13. But there are cases upholding the complete denial of 

access in the termination context when the parent’s rights have not been 

terminated. See, e.g., J.C. v. Tex. Dept. of Family & Protective Servs., No. 03-

12-00670-CV, 2013 WL 1405892, at *8 (Tex. App.—Austin Apr. 3, 2013, no pet.)

(mem. op.) (holding that trial court did not abuse its discretion in denying father 

visitation and access to children “at this time”); In re W.H.M., No. 01-00-01396-

CV, 2003 WL 22254713, at *9–10 (Tex. App.—Houston [1st Dist.] Oct. 2, 2003, 

pet. denied) (mem. op.) (upholding jury’s implied findings that allowing father any 

access to child would endanger the child’s physical or emotional welfare).
29

had discretion to determine the specific terms and conditions of access. See

Tex. Fam. Code Ann. § 153.193. In light of the jury’s implicit findings, we are 

unable to conclude that the trial court abused its discretion by denying Father 

possession of and access to the Child. See id. Accordingly, we are constrained 

to overrule Father’s third issue.

V. De Facto Termination

In his fourth issue, Father alternatively argues that if section 105.002(c) 

permitted the jury to deny access and possession as well as conservatorship, 

then family code sections 105.002(c) and 153.191 operated in concert 

unconstitutionally as applied to him because these sections allowed the jury to 

effectuate a de facto termination of his parental rights under a preponderance of 

the evidence standard. As we stated in our opinion granting Mother’s mandamus 

petition, the burden of proof in a custody case differs from that in a termination 

proceeding. See M.S., 2014 WL 1510059, at *2 (citing In re J.A.J., 243 S.W.3d 

611, 616 (Tex. 2007) (contrasting the quantum of proof required to support 

termination from that required to support a conservatorship decision); Tex. Fam. 

Code Ann. § 105.005 (providing that findings must be based on a preponderance 

of the evidence unless otherwise provided by title 5 of the family code); Tex. 

Fam. Code Ann. § 161.001(b) (West Supp. 2015) (stating that evidence 

supporting findings in termination proceedings must be clear and convincing)). 

Father, even though he was not appointed conservator, can seek modification of 

the conservatorship order, and the trial court has discretion to grant the 
30

modification if it is in the child’s best interest and the parent’s or child’s 

circumstances have materially and substantially changed since the order was 

rendered. See id. (citing Tex. Fam. Code Ann. §§ 102.003(a)(1), 156.001–.002, 

156.101 (West 2014 & Supp. 2015)). “It is this law that differentiates Father from 

parents whose relationships with their children have been permanently severed, 

and it is this law that provides Father and other similarly situated parents due 

process.” Id. (citing J.A.J., 243 S.W.3d at 617 (rejecting parent’s argument that 

requiring separate challenges to conservatorship decisions and termination 

orders will result in the de facto termination of parental rights for parents who win 

their termination appeals and noting that the family code “guards against that 

possibility,” citing sections 102.003, 156.001, and 156.101 of the family code)). 

Accordingly, we overrule Father’s final issue.

VI. Conclusion

Having overruled each of Father’s four issues, we affirm the trial court’s 

judgment.

/s/ Anne Gardner

ANNE GARDNER

JUSTICE 

PANEL: DAUPHINOT, GARDNER, and GABRIEL, JJ.

GABRIEL, J. concurs without opinion.

DELIVERED: December 3, 2015