in the Interest of A.G. and F.G., Children

ACCEPTED

01-15-00571-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS

9/24/2015 9:45:33 PM

CHRISTOPHER PRINE

CLERK

N0. 01-15-00571-CV

FILED IN

1st COURT OF APPEALS

IN THE COURT OF APPEALS HOUSTON, TEXAS

9/24/2015 9:45:33 PM

FOR THE FIRST DISTRICT CHRISTOPHER A. PRINE

Clerk

OF TEXAS AT HOUSTON, TEXAS

IN THE INTEREST OF A.G. AND F.G., CHILDREN

S.F., APPELLANT

vs.

DEPARTMENT OF FAMILY AND

PROTECTIVE SERVICES, APPELLEE

ON APPEAL FROM

THE 313TH DISTRICT COURT OF

HARRIS COUNTY, TEXAS

TRIAL COURT CAUSE NO. 2013-06904J

ORIGINAL APPELLANT’S BRIEF

DONALD M. CRANE

DONALD M. CRANE (SBN 05005900)

Attorney at Law

810 South Mason Road, #350

Katy, Texas 77450

Telephone: (281) 392-6611

Facsimile: (281) 392-5383

donmcrane@gmail.com

ATTORNEY FOR APPELLANT, S.F.

NO ORAL ARGUMENT REQUESTED

IDENTITY OF PARTIES AND COUNSEL

Respondent/Appellant: Trial Counsel:

S.F., Mother Juliane (Juli) Crow

P.O. Box 10152

Houston, Texas 77026

Appellate Counsel:

Donald M. Crane

810 South Mason Road, Suite 350

Katy, Texas 77450

Petitioner/Appellee: Trial Counsel:

Department of Jamie Rawlinson

Family and Protective Assistant County Attorney

Services 1019 Congress Avenue, 15th Floor

Houston, Texas 77002-1700

Appellate Counsel:

Sandra D. Hachem

Senior Assistant County Attorney

2525 Murworth, Suite 300

Houston, Texas 77054-1603

Interested Party: Ad Litem:

A.G. and F.G., Children John R. Millard

1 Sugar Crk. Ctr. Blvd., Ste. 925

Sugar Land, Texas 77478

Interested Party: Trial Counsel:

R.F., Father Dana Rahman

1415 S. Voss Road #110-398

Houston, Texas 77057

1

Interested Party: Trial Counsel:

B.L., Alleged Father Dana Rahman

1415 S. Voss Road #110-398

Houston, Texas 77057

Interested Party: Trial Counsel:

Unknown Father Mitchel Ryan Nelson

111 W. 15th St.

Houston, Texas 77008-4220

2

TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL 1

TABLE OF CONTENTS 3

INDEX OF AUTHORITIES (Cases) 5

INDEX OF AUTHORITIES (Statutes and Rules) 7

NO ORAL ARGUMENT REQUESTED 8

RECORD REFERENCES 8

PARTY/PARTICIPANT REFERENCES 9

STATEMENT OF THE CASE 10

ISSUES PRESENTED 11

APPELLANT’S BRIEF 12

STATEMENT OF FACTS 14

ARGUMENTS AND AUTHORITIES 21

A. Standard of Review 21

B. Best Interest 23

SUMMARY OF ARGUMENT 26

I. ISSUE PRESENTED NO. ONE 26

A. Argument 26

B. Authorities 26

C. Analysis 27

3

II. ISSUE PRESENTED NO. TWO 29

A. Argument 29

B. Authorities 29

C. Analysis 30

CONCLUSION AND PRAYER 32

CERTIFICATE OF COMPLIANCE 33

CERTIFICATE OF SERVICE 34

4

INDEX OF AUTHORITIES

CASES PAGE

City of Keller v. Wilson, 168 s.w.3D 802 (Tex. 2005) 22

Holick v. Smith, 685 S.W.2D 18 (Tex. 1985) 21, 29

Holley v. Adams, 544 S.W.2d 367 (Tex. 1976) 24, 29

In re A.A.A., 265 S.W.3d 507, 516 (Tex. App. – 25, 30

Houston [14th Dist.] 2008, pet. denied)

In re A.I.G., 135 S.W.3d 687, 692 (Tex. App. – 24, 29

San Antonio 2003, no pet.)

In re C.H., 89 S.W.3d 17 (Tex. 2002) 22, 23

In re C.L.C., 119 S.W.3d 382 (Tex. App. – 27

Tyler 2003, no pet.)

In re D.T., 34 S.W.3d 625, 632 (Tex. App. – 23, 27

Fort Worth 2000, pet. denied)

In re E.C.R., 402 S.W.3d 239 (Tex. 2013) 25

In re J.F.C., 96 S.W.3d 256 (Tex. 2002) 21, 22

In re J.J., 911 S.W.2d 437, 440 (Tex. App. – 27

Texarkana, 1995)

In re L.C., 145 S.W.3d 790, 795-796 26

(Tex. App. – Texarkana 2004, no pet.)

5

INDEX OF AUTHORITIES, cont.

In re N.R., 101 S.W.3d 771, 776 (Tex. App., 2003) 27

In re S.R.L., 243 S.W.3d 232 [Tex. App. – Houston 23

th

(14 Dist.) 2007, no pet.]

In the Interest of E.S.S., 131 S.W.2d 632 22

(Tex. App.-Fort Worth 2004, no pet.)

Jordan v. Dossey, 325 S.W.3d 700, 721 (Tex. App. – Houston 26

[1st Dist.] 2010, pet. denied)

Tex. Dep’t of Human Services v. Boyd, 727 S.W.2d 531 26, 27

(Tex. 1987)

Santosky v. Kramer, 455 U.S. 745 (1982) 21

Stanley v. Illinois, 405 U.S. 645 (1972) 21, 29

Yonko v. Dept. of Family & Protective Servs. 23

196 S.W.3d 236 [Tex. App. -Houston (1st Dist.) 2006]

6

STATUTES AND RULES PAGE

TEX. FAM. CODE ANN. § 101.007 27

(Vernon Supp. 2002)

TEX. FAM. CODE ANN. § 161.001(1) 28

(Vernon Supp. 2002)

TEX. FAM. CODE ANN. § 161.001(1)(D) 31

(Vernon Supp. 2002)

TEX. FAM. CODE ANN. § 161.001(2) 33

(Vernon Supp. 2002)

7

NO ORAL ARGUMENT REQUESTED

Appellant, S.F., does not request oral argument.

RECORD REFERENCES

TRANSCRIPT

The pleading record consists of the Transcript (Clerk’s Record). The

Transcript is referenced to herein as [CR ] followed by a page

and line reference.

Both the Transcript and the Statement of Facts (Reporter’s Record)

may contain copies of the Exhibits and, if so, will be referenced

accordingly.

STATEMENT OF FACTS

The Statement of Facts (Reporter’s Record) consists of three (3) volumes

(including Exhibits) prepared by Ms. Elizabeth Cordova, CSR, Texas CSR

9039, Deputy Court Reporter, 313th District Court, 8531 Triola Lane,

Houston, Texas 77036, (281) 865-2723, and is referred to herein as [RR

Vol. , p. , l.____].

Ms. Cordova’s Reporter’s Record, Volume 1 of 3, is entitled “Master,” and

references the 2nd day of June 2015.

Ms. Cordova’s Reporter’s Record, Volume 2 of 3, is entitled “Trial,” and

references the 2nd day of June 2015.

Ms. Cordova’s Reporter’s Record, Volume 3 of 3, is entitled “Exhibits,”

and references the 2nd day of June 2015.

8

PARTY/PARTICIPANT REFERENCES

Appellant, S.F., may be referred to as: “Appellant,” “S.F.,” “respondent

mother,” “mother,” or “daughter.”

Further, Appellee refers to Department of Family and Protective Services

and may be referred to as: “Petitioner,” “DFPS,” “CPS,” or the “Agency.”

“A.G. and F.G.” refers to the children and may be referred to as: “A.G.” or

“F.G.”

“T.E.” and “godmother” refers to the godmother of the children.

9

TO THE HONORABLE JUSTICES OF THE FIRST COURT OF

APPEALS:

Appellant, S.F., (also referred to as “mother”), respectfully submits her

original brief in the above styled and numbered appeal.

STATEMENT OF THE CASE

On December 18, 2013, the Texas Department of Family and Protective

Services (“DFPS”) filed its Original Petition for Protection of a Child, for

Conservatorship, and for Termination in Suit Affecting the Parent-Child

Relationship (“the Original Petition”) wherein it requested, inter alia., to be named

the temporary managing conservator of A.G., a female child born on August 15,

2001 and F.G., a female child born December 26, 2011. CR pp. 4-35.

The case was tried before the Honorable Stephen Newhouse on June 2,

2015. RR Vol. 2, p. 1, l. 20-23. The Court entered judgment in favor of DFPS

and terminated the parent-child relationship between Appellant and her children,

A.G. and F.G. RR Vol. 2, p. 36, l. 20-24. Appellant’s rights were terminated

pursuant to Texas Family Code Section 161.001(1)(D), (E), (L), and (O). RR Vol.

2, p. 36, l. 22-24; CR pp. 160-170.

On June 29, 2015, Appellant filed her notice of appeal. CR pp.

174-175. Appellant seeks reversal of the judgment entered June 25, 2015.

10

ISSUES PRESENTED

Issue Presented No. One: The evidence was legally and factually insufficient

to support the termination of Appellant’s parental rights under Texas

Family Code Section 161.001(1)(D)

Issue Presented No. Two: The evidence was legally and factually insufficient

to support the termination of Appellant’s parental rights under Texas

Family Code Section 161.001(2)

11

N0. 01-15-00571-CV

IN THE COURT OF APPEALS

FOR THE FIRST DISTRICT

OF TEXAS AT HOUSTON, TEXAS

IN THE INTEREST OF A.G. and F.G., CHILDREN

S.F., APPELLANT

vs.

DEPARTMENT OF FAMILY AND

PROTECTIVE SERVICES, APPELLEE

ON APPEAL FROM

THE 313TH DISTRICT COURT OF

HARRIS COUNTY, TEXAS

TRIAL COURT CAUSE NO. 2014-06904J

APPELLANT’S BRIEF

TO THE HONORABLE JUSTICES OF THE FIRST COURT OF APPEALS:

COMES NOW DONALD M. CRANE (“Appellate Counsel”), appointed

Attorney Ad litem on appeal for Appellant, S.F., Respondent Mother, and

respectfully submits this Appellant’s Brief.

12

Appellant, S.F., may be referred to as: “Appellant,” “S.F.,” “respondent

mother,” “mother,” or “daughter.”

Further, Appellee refers to Department of Family and Protective Services

and may be referred to as: “Petitioner,” “DFPS,” “CPS,” or the “Agency.”

“A.G. and F.G.” refers to the children and may be referred to as: “A.G.” or

“F.G.”

“T.E.” and “godmother” refers to the godmother of the children.

13

STATEMENT OF FACTS

On November 15, 2013, DFPS received a referral alleging the neglectful

supervision of F.G. CR pp. 96. The referral alleged that law enforcement was

dispatched to S.F.’s home for “a welfare concern.” CR pp. 96. It further alleged

that a neighbor stated she watched F.G. “wander around the courtyard of the

apartment complex” for a few hours alone. CR pp. 96. When law enforcement

arrived to the apartment complex, F.G. was with the neighbor. CR pp. 96. The

referral stated that F.G. is “often left unsupervised a lot.” CR pp. 96. It further

stated that S.F. was “across the street at a bar listening to a band” and

“intoxicated.” CR pp. 96. Lastly, the referral stated that S.F. was “arrested for

child endangerment.” CR pp. 96.

On November 19, 2013, Alexaundra Duncan, investigative caseworker,

interviewed A.G., F.G. and their godmother, T.E. CR pp. 97-98. A.G. stated S.F.

would “frequently leave her home alone.” CR pp. 97. At the time of the incident,

A.G. stated S.F. left her alone to watch F.G., while S.F. and some friends went to

the bar to “participate in karaoke.” CR pp. 98. A.G. “left her sister outside in the

courtyard” while A.G. “went upstairs to use the restroom.” CR pp. 98. T.E. stated

S.F. asked her to be the godmother of her children “and has since formed a

14

relationship with the children.” CR pp. 98. T.E. also stated she would be able to

serve a parental child safety placement. CR pp. 98.

On November 20, 2013, Ms. Duncan interviewed S.F. CR pp. 98. S.F.

stated her neighbor “set her up” and that the neighbor wants her children “because

the children are extremely beautiful.” CR pp. 98. S.F. further denied using drugs

or drinking alcohol. CR pp. 98.

On November 21, 2013, Ms. Duncan interviewed Ms. Pam Ham, the

apartment manager. Ms. Ham stated that S.F. is behind on rent and “is going to be

evicted from her apartment.” CR pp. 99. Ms. Ham also stated that S.F.’s

electricity was “always off due to nonpayment.” CR pp. 99.

On December 1, 2013, S.F. informed Ms. Duncan “she had checked her

self into Bayshore Medical Center.” CR pp. 100. A few days later, Ms. Duncan

spoke with Dr. Arianne Rumley, who informed her that S.F. was being discharged

to the Bay Area Homeless Shelter, diagnosed with depression, and tested positive

for marijuana. CR pp. 100.

On December 6, 2013, Ms. Duncan requested S.F. to take a drug test and

S.F. stated “she had smoked marijuana a few days before she had gotten arrested,”

15

so “she would probably test positive.” CR pp. 100. A few weeks later, S.F.

informed Ms. Duncan that “she is bi-polar and is not currently taking

medication.” CR pp. 100. S.F. also stated that “she does not have a place to live

due to her being evicted from her apartment.” CR pp. 100.

TRIAL

On June 2, 2015 the following testified at trial: Ms. Tina Marsh, DFPS

supervisor and T.E., godmother of A.G. and F.G. S.F. was not present for trial.

RR Vol. 2, p. 5, l. 9-10.

Tina Marsh

Ms. Marsh testified she has been supervising this case “since the very

beginning when the kids came into custody.” RR Vol. 2, p. 10, l. 16-19. She

further testified the children are with their godmother. RR Vol. 2, p. 10, l. 20-21.

Ms. Marsh testified S.F. completed a psychosocial evaluation and a

substance abuse assessment. RR Vol. 2, p. 11, l. 4-9. Ms. Marsh also testified S.F.

“was supposed to follow the recommendations of the evaluations that she

16

completed and she failed to do that.” RR Vol. 2, p. 11, l. 24-25 – p. 12, l. 1.1 Ms.

Marsh further testified S.F. was going into inpatient treatment the day before trial

and that she had been trying to get into the hospital for over a year but she had not

been able to get in. RR Vol. 2, p. 12, l. 15-25.

Ms. Marsh testified S.F. is not working. RR Vol. 2, p. 13, l. 21. Ms. Marsh

further testified she has not provided any support for the children. RR Vol. 2, p.

27, l. 13-15. Ms. Marsh testified S.F. has communicated infrequently with the

Agency. RR Vol. 2, p. 14, l. 1.2 Ms. Marsh also testified S.F. was convicted of

endangering a child. RR Vol. 2, p. 14, l. 15-17. She further testified that S.F. “has

not done anything” to alleviate the concerns that caused her to inadequately

supervise F.G. RR Vol. 2, p. 14, l. 22-25.

1

Ms. Marsh further testified, “The psychosocial recommended her to have a full-blown

psychological evaluation as well as the parenting classes, complete individual counseling, the

substance abuse treatment, and she never did follow up with any of that.” RR Vol. 2, p. 12, l. 1-

5. She also testified, “The substance assessment recommended her for outpatient treatment; she

never followed through with that. She was supposed to complete a parenting class. She was

supposed to maintain stable housing, stable income, submit to random drug testing; she’s not

doing any of that, she hasn’t done that.” RR Vol. 2, p. 12, l. 5-11.

2

Ms. Marsh further testified, “She’ll call every so often but since the children have been placed

with the current caregiver, she’s not really contacted us.” She also testified, “The other issue

with mom is that she has a mental health diagnosis that she’s refused to get treated for. She’s

diagnosed with bi-polar and I believe schizophrenia. She refused to see a psychiatrist, that was

also part of the recommendation on the psychosocial evaluation that she completed.” RR Vol. 2,

p. 14, l. 1-11.

17

Ms. Marsh testified that S.F. admitted to leaving F.G. in the care of A.G. and that

“she was not present when her 1-year-old was roaming around.” RR Vol. 2, p. 15,

l. 13-21. Ms. Marsh further testified the Agency is asking the Court to terminate

the parental rights of S.F. RR Vol. 2, p. 16, l. 15-18.

Ms. Marsh testified A.G. is bonded to S.F. RR Vol. 2, p. 22, l. 16-17. She

further testified it is not A.G.’s desire to have her mother’s rights terminated. RR

Vol. 2, p. 22, l. 20-22. Ms. Marsh testified that A.G. does not want to be adopted.

RR Vol. 2, p. 22, l. 23-25.3 Ms. Marsh also testified the children are in a kinship

placement that would like to adopt, but the issue is that currently the Godmother

is married and has to settle that relationship in divorce before she can be approved

for an adoption. RR Vol. 2, p. 26, l. 7-12.

T.E.

T.E. testified the children have been in her care for almost six months. RR

Vol. 2, p. 28, l. 14-20. T.E. testified S.F. would come visit “like two, three weeks

3

Ms. Marsh testified that S.F. provided a list of relatives or close family friends to serve a

placement for the children, but none of the names were considered suitable placements. RR

Vol. 2, p. 25, l. 2-11.

18

at a time, and then she would slack off. And then she would come back one day,

one day of the month and then slack off, but she would come visit them. RR Vol.

2, p. 29, l. 1-5. T.E. further testified S.F. supported her with $250 worth of food

stamps “once a month.” RR Vol. 2, p. 29, l. 6-12.4

T.E. testified that when S.F. came over to visit she did not appear to be

healthy. RR Vol. 2, p. 31, l. 5-7.5 T.E. also testified S.F. was high when she came

to her house. RR Vol. 2, p. 31, l. 11-13.6

T.E. testified she has been separated from her husband for over twenty

years. RR Vol. 2, p. 32, l. 23-25.7 She further testified she is willing to take care

of the children. RR Vol. 2, p. 33, l. 12-14. T.E. also testified she works for “All

the Little Things Count,” where she is a program specialist for the mentally

retarded. RR Vol. 2, p. 33, l. 19-25 – p. 34, l. 1-5.

Closing Arguments:

DFPS requested that mother’s parental rights be terminated for both

4

T.E. further testified S.F. was inconsistent in providing her with food stamp money. RR Vol.

2, p. 29, l. 13-25.

5

T.E. further testified S.F. “was down. She was real tired looking. She was real skinny.” RR

Vol. 2, p. 31, l. 8-10.

6

She further testified, as to how she knew she was high, “I could tell from her eyes.” She also

testified that S.F.’s speech was slurred and her eyes were glassy and red. RR Vol. 2, p. 31, l. 14-

20.

7

She also testified that her boyfriend, Phillip, was present with her in court. RR Vol. 2, p. 32, l.

16-22.

19

children under 161.001(1)(D), (E),(L), (N), and (O). RR Vol. 2, p. 35, l. 4-23.

Ms. Crow, Attorney for S.F., made no argument. RR Vol. 2, p. 36, l. 13.

Mr. Millard, Attorney for A.G. and F.G., commented that A.G. “has

expressed that she does not want her mother’s rights to be terminated. So, on her

behalf I request that you not terminate her mother’s rights.” RR Vol. 2, p. 36, l.

15-19.

Court’s Findings

The Court decided that the Agency met its burden by clear and convincing

evidence for both children. RR Vol. 2, p. 36, l. 20-21.

Court’s Ruling:

The Court ruled that the mother’s parental rights were terminated for both

children pursuant to Texas Family Code Section 161.001.1(D), (E), (L), and (O).

RR Vol. 2, p. 36, l. 22-24.

20

ARGUMENTS AND AUTHORITIES

A. Standard of Review

A parent’s natural right to the “companionship, care, custody and

management” of his or her children is fundamental and of constitutional

dimension. Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S.Ct. 1388, 1397

(1982); see Stanley v. Illinois, 405 U.S. 645, 651 (1972); see Holick v. Smith, 685

S.W.2d 18, 20 (Tex. 1985). It is an interest that is far more precious than any

property right. Santosky, 455 U.S. at 758-59. Because the termination of parental

rights involves fundamental constitutional rights, the burden of proof at trial in

parental termination cases is by clear and convincing evidence. Texas Family

Code Section 161.001; In re J.F.C., 96 S.W.3d 256, 263 (Tex. 2002). Under

Section 161.001, a court may order the termination of the parent-child relationship

if the court finds by clear and convincing evidence that (1) one or more acts

enumerated in Section 161.001 (1) was committed and (2) termination is in the

best interest of the child. “Clear and convincing evidence” means the measure or

degree of proof that will produce in the mind of the trier of fact a firm belief or

conviction as to the truth of the allegations sought to be established. Texas Family

Code Section 101.007; J.F.C. 96 S.W.3d at 266.

21

Termination may not be based solely on the best interest of the child, but

both elements must be established. In the Interest of E.S.S., 131 S.W.2d 632

(Tex. App.-Fort Worth 2004, no pet.). In cases involving termination of parental

rights, there is a strong presumption that the best interest of the child is served by

keeping custody in the natural parents. In the Interest of K.C.M., 4 S.W.3d 392,

399 (Tex. App-Houston [1st Dist.] 1999, pet denied, overruled on other grounds;

In re C.H., 89 S.W.3d 17 (Tex. 2002).

In determining legal sufficiency this Court must review all the evidence in

light most favorable to the finding “to determine whether a reasonable trier of fact

could have formed a firm belief or conviction that its finding was true.” J.F.C.,

96 S.W.3d at 266. To give proper deference to the fact finder’s conclusions, this

Court must assume that the fact finder resolved disputed facts in favor of its

finding if a reasonable fact finder could do so. Id. This Court must disregard all

evidence that a reasonable fact finder could have disbelieved or found to have

been incredible. Id. In conducting a legal sufficiency review in a parental

termination case this Court must consider all of the evidence, not only that which

favor the verdict. See City of Keller v. Wilson, 168 S.W.3d 802, 817 (Tex. 2005).

In determining a factual sufficiency point, the higher burden of proof in

22

termination cases also alters the appellate standard of review. In re C.H., 89

S.W.3d 17, 26 (Tex. 2002). “[A] finding that must be based on clear and

convincing evidence cannot be viewed on appeal the same as one that may be

sustained on a mere preponderance.” Id. In reviewing the factual sufficiency of

the evidence, this Court must consider and weigh all evidence, including that

favorable to the appellant as well as that favorable to the finding. In the Interest

of D.T., 34 S.W.3d 625, 631 (Tex. App.-Fort Worth 2000, pet. denied).

B. Best Interest

Although the best interest of the child is often infused with the statutory

grounds for termination under Texas Family Code Section 161.001(1), the best

interest determination must have a firm basis in facts standing apart from the

offending behavior. In re S.R.L., 243 S.W.3d 232, 235 (Tex. App. - Houston [14th

Dist.] 2007, no pet.).

Texas law places a high evidentiary standard on the State in order to

overcome the presumption that children should remain with their parents. Yonko

v. Dept. of Family & Protective Servs., 196 S.W.3d 236 (Tex. App. -Houston [1st

Dist.] 2006).

The determination of a child’s best interest does not require proof of any

23

unique set of factors, nor does it limit the proof to any specific factors. See Holley

v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). In reviewing the sufficiency of

the evidence to support a best-interest finding, courts may consider (1) the desires

of the child, (2) the present and future physical and emotional needs of the child,

(3) the present and future emotional and physical danger to the child, (4) the

parental abilities of the persons seeking custody in promoting the best interest of

the child, (5) the programs available to assist these individuals to promote the best

interest of the child, (6) the plans for the child by the individuals or agency

seeking custody, (7) the stability of the home or proposed placement, (8)

acts or omissions of the parent, which may indicate the existing parent-child

relationship is not appropriate, and (9) any excuse for the parent’s acts or

omissions. Id. at 371-72. Although there is a strong presumption that it is in the

child’s best interest to allow the natural parent to retain custody, when confronted

with evidence to the contrary, that presumption disappears. In re A.I.G., 135

S.W.3d 687, 692 (Tex. App. – San Antonio 2003, no pet.) Also, “abuse or neglect

of the child” necessarily includes the risks or threats of the environment in which

the child is placed including the harm suffered or the danger faced by other

24

children under the parent’s care. In re E.C.R., 402 S.W.3d 239 (Tex. 2013).

Evidence proving one or more of the statutory grounds for termination may be

probative in determining that termination is in the best interest of the child. In re

A.A.A., 265 S.W.3d 507, 516 (Tex. App. – Houston [14th Dist.] 2008, pet. denied).

25

SUMMARY OF ARGUMENT

Issue Presented No. One: The evidence was legally and factually insufficient

to support the termination of Appellant’s parental rights under Texas

Family Code Section 161.001(1)(D)

A. Argument

Appellant argues that the evidence is legally and factually insufficient to

establish (D) termination grounds.

B. Authorities

In order to prove termination under subsection (D), the Agency must

clearly and convincingly show that the Mother “knowingly placed or knowingly

allowed the child to remain in conditions or surroundings which endanger the

physical or emotional well-being of the child.” Tex. Fam. Code Ann. §

161.001(1)(D) (Vernon Supp. 2002). Subsection (D) requires a showing that the

environment in which the child was placed posed a danger to the child’s physical

or emotional health, and it permits termination based on a single act or omission

by the parent. In re L.C., 145 S.W.3d 790, 795-796 (Tex. App. – Texarkana 2004,

no pet.); Jordan v. Dossey, 325 S.W.3d 700, 721 (Tex. App. – Houston [1st Dist.]

2010, pet. denied).

“Endanger” means “to expose to loss or injury; to jeopardize.” Tex. Dep’t

26

of Human Services v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). Endanger also

means more than a threat of metaphysical injury or the possible ill effects of less-

than-ideal family environment. Boyd, 727 S.W.2d at 533. Parental conduct does

not have to be directed at the child nor does the child actually need to suffer from

injury, rather it is sufficient that the child’s well-being be jeopardized or exposed

to loss or injury. Boyd, 727 S.W.2d at 533; In re J.J., 911 S.W.2d 437, 440 (Tex.

App. – Texarkana, 1995).

Notably, the concern of this provision is the child’s living environment. In

re D.T., 34 S.W.3d 625, 632 (Tex. App. – Fort Worth 2000, pet. denied); see also

In re C.L.C., 119 S.W.3d 382 (Tex. App. – Tyler 2003, no pet.). There must be a

connection between the living conditions and the actual emotional or physical

injury to the child. In re C.L.C., 119 S.W.3d at 392. However it is not necessary

for the parent to have certain knowledge that the actual injury is occurring, but it

is sufficient that the parent was aware of the potential danger. In re N.R., 101

S.W.3d 771, 776 (Tex. App., 2003).

C. Analysis

The evidence brought by the Agency was legally and factually insufficient.

27

The Agency did not show that the children’s living environment would endanger

the physical or emotional well-being of A.G. and F.G. The Agency provided

testimony only from the DFPS supervisor and the godmother. In regards to the

living environment of the children, the DFPS supervisor, Ms. Marsh, provided

minimal testimony of the children’s living environment. RR Vol. 2, p. 15, l. 7-

21. The exhibits introduced by DFPS also provide minimal information in record

that refers to the children’s living environment and the exhibit information

contains only allegations. RR Vol. 3, p. 76-91. Therefore, the evidence provided

by the Agency was legally and factually sufficient and does not establish the (D)

termination ground.

28

Issue Presented No. Two: The evidence was legally and factually insufficient

to support the termination of Appellant’s parental rights under Texas

Family Code Section 161.001(2)

A. Argument

Appellant argues that the evidence is legally and factually insufficient to

support the trial court’s finding that it was in her children’s best interest for her

parental rights to A.G. and F.G. to be terminated.

B. Authorities

The termination of parental rights involves fundamental

constitutional rights. Stanley v. Illinois, 405 U.S. 645, 651 (1972). The

natural rights that exist between parents and their children are of

constitutional dimension. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). The

determination of a child’s best interest does not require proof of any unique set of

factors, nor does it limit the proof to any specific factors. See Holley v. Adams,

544 S.W.2d 367, 371-72 (Tex. 1976). Although there is a strong presumption that

it is in the child’s best interest to allow the natural parent to retain custody, when

confronted with evidence to the contrary, that presumption disappears. In re

A.I.G., 135 S.W.3d 687, 692 (Tex. App. – San Antonio 2003, no pet.) Evidence

proving one or more of the statutory grounds for termination may be probative in

29

determining that termination is in the best interest of the child. In re A.A.A., 265

S.W.3d 507, 516 (Tex. App. – Houston [14th Dist.] 2008, pet. denied).

C. Analysis

There are multiple factors introduced into evidence to disprove the trial

court’s determination. The most distinct evidence presented was the desires of

A.G. According to the testimony, the Court heard multiple statements that A.G.

did not desire for her mother’s parental rights to be terminated. Ms. Marsh

testified that A.G. is bonded to S.F. RR Vol. 2, p. 22, l. 16-17. She also testified

that it is not A.G.’s desire to have her mother’s rights terminated. RR Vol. 2, p.

22, l. 20-22. Ms. Marsh further testified that A.G. does not want to be adopted.

RR Vol. 2, p. 22, l. 23-25. During closing arguments, Mr. Millard also made

similar remarks regarding A.G.’s desires. Mr. Millard stated, A.G. “has expressed

that she does not want her mother’s rights to be terminated. So, on her behalf I

request that you not terminate her mother’s rights.” RR Vol. 2, p. 36, l. 15-19.

Lastly, the children are placed in an environment that is inconsistent and

detrimental to their well-being. The testimony shows that T.E.’s questionable

lifestyle and unstable home environment may present future emotional and

30

physical dangers to the children. T.E. further testified she has been separated from

her husband for over twenty years. RR Vol. 2, p. 32, l. 23-25. This raises

concerns about T.E.’s character (as to her multiple relationships) which could

significantly impact the lives of these children. For example, why has T.E. not

divorced this person after twenty years? And, will her husband come back into

T.E.’s life?

T.E. also testified that her boyfriend was present with her in court. RR Vol.

2, p. 32, l. 16-22. Although there is insufficient inquiry regarding T.E.’s multiple

relationships (however speculative such inquiry may be), it remains unsettling that

T.E. may be too distracted to care for two young children.

Therefore, the evidence could not be clearer, for it is both legally and

factually insufficient to support the trial court’s finding that it was in her

children’s best interest for her parental rights to A.G. and F.G. to be terminated

because of A.G.’s outspoken desires and T.E.’s multiple relationships with other

men.

31

CONCLUSION AND PRAYER

Appellant prays that this Honorable Court of Appeals reverse the judgment

terminating her parental rights to A.G. and F.G. and remand this case to the trial

court for the sole purpose of conducting an evidentiary hearing on the issue of

conservatorship.

Appellant prays for general relief.

Respectfully submitted,

/s/ Donald M. Crane

Donald M. Crane

TBA 05005900

Attorney at Law

810 South Mason Road, #350

Katy, Texas 77450

Telephone: (281) 392-6611

Facsimile: (281) 392-5383

donmcrane@gmail.com

ATTORNEY ON APPEAL FOR

S.F.

32

CERTIFICATE OF COMPLIANCE

I hereby certify that the word count of this document is 5,228 words.

/s/ Donald M. Crane

Donald M. Crane

33

CERTIFICATE OF SERVICE

I hereby certify that on September 24, 2015, that a true and correct copy of the

foregoing Original Appellant’s Brief, was served in accordance with the TRAP to

Ms. Sandra Hachem, Sr. Assistant Harris County Attorney, counsel for DFPS by

electronically delivery through prodoc efiling and E-mail, and on Dana Rahman,

Attorney for Fathers, R.F. & B.L., through hand-delivery or fax, and on John

Millard, Attorney Ad litem, through hand-delivery or fax, and on Mitchel Ryan

Nelson, Attorney for Unknown Father through hand-delivery or fax and Appellant

through hand-delivery or First Class U. S. Post.

Ms. Sandra D. Hachem,

Senior Assistant County Attorney

Attorney for Appellee,

Department of Family and Protective Services

2525 Murworth, Suite 300

Houston, Texas 77054

Sandra.Hachem@cao.hctx.net

(713) 578-3995 fax

Ms. Dana Rahman Via hand-delivery only

Attorney for Fathers, R.F. & B.L.

1415 S. Voss Road #110-398

Houston, Texas 77057

(832) 218-1911 fax

Mr. John R. Millard Via hand-delivery only

Attorney Ad litem

1 Sugar Crk. Ctr. Blvd., Ste. 925

Sugarland, Texas 77478

(888) 501-0680 fax

34

Mr. Mitchel Ryan Nelson Via hand-delivery only

Attorney for Unknown

111 W. 15th St.

Houston, Texas 77008-4220

(713) 869-9912 fax

Ms. S.F., Appellant

832 White Boulevard, #104

McComb, MS 39648

/s/ Donald M. Crane

Donald M. Crane

35

City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005)

Page 802

168 S.W.3d 802 (Tex. 2005)

The CITY OF KELLER, Petitioner,

v.

John W. WILSON, Grace S. Wilson,

Johnny L. Wilson and Nancy A. Wilson, Respondents.

No. 02-1012.

Supreme Court of Texas

June 10, 2005

Argued Oct. 19, 2004.

Rehearing Denied Sept. 2, 2005.

On Petition for Review from the Court of Appeals for the Second District of Texas.

Page 803

[Copyrighted Material Omitted]

Page 804

[Copyrighted Material Omitted]

Page 805

[Copyrighted Material Omitted]

Page 806

[Copyrighted Material Omitted]

Page 807

Dabney D. Bassel, Larry Bracken, Law Snakard & Gambill, P.C., Fort Worth, Douglas H. Conner III, L. Stanton

Lowry, Boyle & Lowry, L.L.P., Irving, for petitioner.

James B. Barlow, Barlow & Garsek, Fort Worth, Robert L. Russell Bush, Bush & Morrison, Arlington, David R.

Casey, Hurst, for respondents.

Jay Doegey, Assistant City Attorney for the City of Corpus Christi, Texas, Corpus Christi, Theodore P. Gorski Jr.,

Office of the City Attorney for City of Fort Worth, Mark G. Daniel, Evans Gandy Daniel & Moore, Fritz Quast, Taylor

Olson Adkins Sralla & Elam, LLP, Fort Worth, Monte Akers, Texas Municipal League, Austin, Michael A. Bucek, Senior

Assistant City Attorney, Irving, Robert F. Brown, Brown & Hofmeister, L.L.P., Richardson, Bruce S. Powers, Assistant

County Attorney, Michael A. Stafford, Harris County Attorney, Houston, for Amicus Curiae.

BRISTER, Justice & JEFFERSON, Chief Justice, HECHT, WAINWRIGHT, and GREEN, Justice joined, and in which

Justice O'NEILL and Justice MEDINA joined as to Parts I through IV.

OPINION

BRISTER, Justice.

Must an appellate court reviewing a verdict for legal sufficiency start by considering all the evidence or only

part? Over the years, we have stated both as the proper scope of review. While some see the standards as opposing,

we disagree; like a glass that is half-full or half-empty, both arrive at the same point regardless of where they start.

But both standards must be properly applied. Rules and reason sometimes compel that evidence must be

credited or discarded whether it supports a verdict or contradicts it. Under either scope of review, appellate courts

must view the evidence in the light favorable to the verdict, crediting favorable evidence if reasonable jurors could,

and disregarding contrary evidence unless reasonable jurors could not. As we find the evidence here meets neither

standard, we reverse.

I. Factual and Procedural History

The City of Keller is one of several fast-growing communities on the outskirts of

Page 808

Fort Worth.[1]As part of that growth, the City approved plans for two new subdivisions, Estates of Oak Run and

Rancho Serena, including plans for storm water drainage.

The Wilsons own property southeast of the new subdivisions, with a tract owned by Z.T. Sebastian lying

between. Before development, surface water flowed generally north to south from the land where the subdivisions

were built, across the Sebastian and Wilson properties, and into the Little Bear Creek Watershed.

In 1991, the City adopted a Master Drainage Plan providing for drainage easements across both the Sebastian

and Wilson properties, and thence into Little Bear Creek. The City's codes require developers to comply with the

Master Plan, to provide drainage for a 100-year rain event, and to avoid increasing the volume or velocity of water

discharged upon downhill properties.

The developers of Oak Run and Rancho Serena submitted plans to the City indicating they would buy a

drainage easement and build a ditch forty-five feet wide and more than two hundred yards long across the Sebastian

property, and deed both to the City upon completion.[2]The plans also included detention basins on the subdivision

properties, but omitted any drainage easement or ditch across the Wilsons' property. The City's director of public

works approved the developers' plans, and the City accepted the works on completion.

In accordance with the Master Plan, the City built a box culvert south of the Wilsons' property. But as the

developers' drainage ditch ended at the Wilsons' north property line, there was no link between the two. The Wilsons

alleged and the jury found this omission increased flooding on the Wilsons' property, ruining eight acres of farmland

the jury valued at almost $300,000.

To recover damages for inverse condemnation, the Wilsons had to prove the City intentionally took or

damaged their property for public use, or was substantially certain that would be the result.[3]They do not allege the

City intentionally flooded their land, but do allege it approved revised plans that it knew were substantially certain to

have that effect.

The City contends no evidence supports the jury's finding of an intentional taking. It presented evidence that

engineers for the developers, for the City, and for an outside firm the City retained all certified that the revised

drainage plan complied with the City's codes and regulations— including the ban against increasing downstream

runoff. Thus, the City asserts it had no reason to be substantially certain the opposite would occur, until it did.

A divided court of appeals rejected this contention.[4]In its legal sufficiency review, the court refused to

consider the various engineers' certifications because "we are to consider only the evidence and inferences that tend

to support the finding and disregard all evidence and inferences to the contrary."[5]The City challenges

Page 809

this omission as applying the wrong scope of review.

We have on many occasions stated the scope of review precisely as the court of appeals says (the "exclusive"

standard).[6]But we have also stated that a reviewing court must consider "all of the evidence" in the light favorable

to the verdict (the "inclusive" standard).[7]Sometimes we have mentioned neither reviewing all evidence nor

disregarding some part of it.[8]Finally, we have sometimes expressly mentioned both.[9]

Although this Court has used both the exclusive and the inclusive standards interchangeably over the years,

commentators say the two are different.[10]Because this

Page 810

important issue is dispositive here, we address it in some detail, and reserve for another day the City's arguments

that a governmental entity cannot be liable for approving a developer's plans, or accepting rather than constructing

the works at issue.

II. Contrary Evidence That Cannot Be Disregarded

The question presented here is not a new one. More than 40 years ago, then Justice Calvert[11]addressed the

standards for reviewing legal and factual sufficiency in the most-cited law review article in Texas legal

history.[12]Frustrated that despite this Court's efforts to explain those standards "a growing number of recent

decisions indicate a continuing misunderstanding," [13]the author summarized and attempted to clarify Texas law up

to 1960.[14]The article's impact remains substantial today, having been cited more than 100 times by Texas courts in

the last five years.

According to the article:

"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.[15]

We have quoted a similar formulation on many occasions.[16]

Notably, Justice Calvert then proceeded to put the question before us in the proper context:

It is in deciding "no evidence" points in situation (c) that the courts follow the further rule of viewing the evidence in

its most favorable light in support of the finding of the vital fact, considering only the evidence and the inferences

which support the finding and rejecting the evidence and the inferences which are contrary to the finding.[17]

Clearly, the traditional rule in Texas has never been that appellate courts must reject contrary evidence in

every no-evidence review. Instead, the traditional scope of review does not disregard contrary evidence if there is no

favorable evidence

Page 811

(situation (a) above), or if contrary evidence renders supporting evidence incompetent (situation (b) above) or

conclusively establishes the opposite (situation (d) above).

As the following examples show, this has remained the rule since. We do not presume to categorize all

circumstances in which contrary evidence must be considered in a legal sufficiency review. Evidence can be

disregarded whenever reasonable jurors could do so,[18]an inquiry that is necessarily fact-specific. But it is important

that when courts use the exclusive standard and disregard contrary evidence, they must recognize certain exceptions

to it.

A. Contextual Evidence

In Justice Calvert's first situation—a complete absence of evidence of a vital fact—it is generally irrelevant

whether a reviewing court considers contrary evidence.[19]If supporting evidence is absent, opposing evidence cannot

change that result. But in a number of cases, the lack of supporting evidence may not appear until all the evidence is

reviewed in context.

For example, publications alleged to be defamatory must be viewed as a whole—including accompanying

statements, headlines, pictures, and the general tenor and reputation of the source itself.[20]A court reviewing legal

sufficiency cannot disregard parts of a publication, considering only false statements to support a plaintiff's verdict or

only true ones to support a defense verdict.[21]

Similarly, reviewing courts must construe contracts as a whole; we do not consider only the parts favoring one

party and disregard the remainder, as that would render the latter meaningless.[22]Even writings executed at different

times must be considered together if they pertain to the same transaction.[23]

It is not just writings that reviewing courts must consider in context. For example, in reviewing intentional

infliction of emotional distress claims for legal sufficiency, "we consider the context and the relationship between the

parties."[24]Acts that might constitute outrageous conduct when dealing with a hearing-impaired consumer[25]may be

legally insufficient between

Page 812

business parties.[26]In our no-evidence reviews of successful claims, we have invariably reviewed not just evidence

showing the conduct was outrageous, but also evidence showing that, in context, it was not.[27]

More generally, evidence cannot be taken out of context in a way that makes it seem to support a verdict

when in fact it never did.[28]If a witness's statement "I did not do that" is contrary to the jury's verdict, a reviewing

court may need to disregard the whole statement, but cannot rewrite it by disregarding the middle word alone.

Thus, if evidence may be legally sufficient in one context but insufficient in another, the context cannot be

disregarded even if that means rendering judgment contrary to the jury's verdict. Either "evidence contrary to the

verdict" must be defined to exclude material contextual evidence, or it must be an exception to the general rule.

B. Competency Evidence

It has long been the rule in Texas that incompetent evidence is legally insufficient to support a judgment, even

if admitted without objection.[29]Thus, evidence showing it to be incompetent cannot be disregarded, even if the

result is contrary to the verdict. If the rule were otherwise, incompetent evidence would always be legally sufficient,

because the evidence showing it to be incompetent could never be considered.

Thus, for example, if an eyewitness's location renders a clear view of an accident "physically impossible," it is

no evidence of what occurred, even if the eyewitness thinks otherwise.[30]Similarly, an employee's testimony that he

was in the course and scope of his employment is legally insufficient to support a verdict against his employer if the

evidence shows that legal conclusion to be incompetent.[31]

This exception frequently applies to expert testimony. When expert testimony is required, lay evidence

supporting liability is legally insufficient.[32]In

Page 813

such cases, a no-evidence review cannot disregard contrary evidence showing the witness was unqualified to give an

opinion.[33]And if an expert's opinion is based on certain assumptions about the facts, we cannot disregard evidence

showing those assumptions were unfounded.[34]

After we adopted gate-keeping standards for expert testimony,[35]evidence that failed to meet reliability

standards was rendered not only inadmissible but incompetent as well.[36]Thus, an appellate court conducting a no-

evidence review cannot consider only an expert's bare opinion, but must also consider contrary evidence showing it

has no scientific basis.[37]Similarly, review of an expert's damage estimates cannot disregard the expert's admission

on cross-examination that none can be verified.[38]

Thus, evidence that might be "some evidence" when considered in isolation is nevertheless rendered "no

evidence" when contrary evidence shows it to be incompetent. Again, such evidence cannot be disregarded; it must

be an exception either to the exclusive standard of review or to the definition of contrary evidence.

C. Circumstantial Equal Evidence

As noted above, Justice Calvert believed the exclusive standard applied only when a no-evidence challenge

asserted the evidence was no more than a scintilla.[39]But he went on to note a "variation" that required contrary

inferences to be considered when the equal-inference rule applied.[40]

In claims or defenses supported only by meager circumstantial evidence, the evidence does not rise above a

scintilla (and thus is legally insufficient) if jurors would have to guess whether a vital fact exists.[41]"When the

circumstances are equally consistent with either of two facts, neither fact may be inferred."[42]In such cases, we must

"view each piece of circumstantial

Page 814

evidence, not in isolation, but in light of all the known circumstances."[43]

Justice Calvert argued there was "no necessity for the variation" because drawing an inference based on

meager evidence was unreasonable whether or not the reviewing court considered the opposing

inferences.[44]Nevertheless, he recognized that "[t]he opposing inference is present and it does no harm to note its

presence." [45]

In subsequent cases this Court has continued to note rather than disregard the presence of equal but opposite

inferences, often because lower courts have overlooked them. Thus, for example, one might infer from cart tracks in

spilled macaroni salad that it had been on the floor a long time, but one might also infer the opposite—that a sloppy

shopper recently did both.[46]Similarly, when injury or death occurs without eyewitnesses and only meager

circumstantial evidence suggests what happened, we cannot disregard other meager evidence of equally likely

causes.[47]

Thus, when the circumstantial evidence of a vital fact is meager, a reviewing court must consider not just

favorable but all the circumstantial evidence, and competing inferences as well.

D. Conclusive Evidence

Next, Justice Calvert noted that Texas courts conducting a no-evidence review traditionally do not disregard

contrary evidence that conclusively establishes the opposite of a vital fact.[48]He argued that this is to some extent

not a "true" no-evidence claim, as proponents may have to show not only that no evidence supports the verdict but

that the opposite was proved as a matter of law.[49]There are several types of conclusive evidence. First, an appellate

court conducting a legal sufficiency review cannot "disregard undisputed evidence that allows of only one logical

inference."[50]By definition, such evidence can be viewed in only one light, and reasonable jurors can reach only one

conclusion from it. Jurors are not free to reach a verdict contrary to such evidence; [51]indeed, uncontroverted issues

Page 815

need not be submitted to a jury at all.[52]

Reviewing legal sufficiency in such cases encompasses a general no-evidence review, because if some

evidence supports the verdict then the contrary evidence was not "undisputed." But the review does not stop there;

the evidence must also have only one logical inference. Undisputed evidence that reasonable jurors could disbelieve

has two: (1) it is true, or (2) it is not.

Most often, undisputed contrary evidence becomes conclusive (and thus cannot be disregarded) when it

concerns physical facts that cannot be denied. Thus, no evidence supports an impaired-access claim if it is

undisputed that access remains along 90 percent of a tract's frontage.[53]Evidence that a buyer believed a product

had been repaired is conclusively negated by an accompanying letter to the contrary.[54]And an insured's liability has

not been determined by an "actual trial" if the insured did not appear, present evidence, or challenge anything

presented by his opponent.[55]

Undisputed contrary evidence may also become conclusive when a party admits it is true. Thus, a claimant's

admission that he was aware of a dangerous premises condition is conclusive evidence he needed no warning about

it.[56]Similarly, an ex-employee's admission that she obtained other employment may prove conclusively that she did

not detrimentally rely on a defendant's promise to re-hire her.[57]And jurors may not find that an indictment was

based on a defendant's misleading report when the district attorney admits it was his own mistake.[58]

It is impossible to define precisely when undisputed evidence becomes conclusive. For example, an injured

employee's return to work may prove conclusively that an injury was not total,[59]or it may not.[60]Circumstances in

which a body is found may conclusively establish suicide,[61]or allow

Page 816

jurors to infer otherwise.[62]Evidence is conclusive only if reasonable people could not differ in their conclusions,[63]a

matter that depends on the facts of each case.

There is another category of conclusive evidence, in which the evidence is disputed. Undisputed evidence and

conclusive evidence are not the same—undisputed evidence may or may not be conclusive, and conclusive evidence

may or may not be undisputed.

Thus, for example, in Murdock v. Murdock, we found no evidence to support a verdict establishing the

defendant's paternity when blood tests conclusively proved he was not the child's father.[64]The evidence was directly

disputed—the child's mother testified she had conjugal relations with no one else during the relevant

time.[65]Nevertheless, we held there was no evidence to support the paternity verdict because of conclusive evidence

to the contrary.[66]

Similarly, in Texas & New Orleans Railroad Co. v. Compton, we found no evidence that a railroad's negligence

caused an automobile to slam into the sixtieth car of a slow-moving train.[67]Again, the evidence was hotly disputed—

while railroad witnesses testified that warning signs were in place at the crossing, the car's driver and a passenger

testified they saw nothing, and would have been able to stop if they had.[68]Nevertheless, we held there was no

evidence to support the claim because, if the driver could not see the side of a train before he hit it, he could not

have seen a crossing sign either.[69]

Of course, there are few instances in which disputed evidence is conclusive, and many instances in which

undisputed evidence is not. As our sister court has noted, testimony by a paid informant is legally sufficient to

support a conviction, even if "[t]wenty nuns testify that the defendant was with them at the time, far from the scene

of the crime . . . [and] [t]wenty more nuns testify that they saw the informant commit the crime." [70]But a more

famous clerical hypothetical by Judge Learned Hand shows the opposite limit:

If, however, it were proved by twenty bishops that either party, when he used the words [in a contract], intended

something else than the usual meaning which the law imposes upon them, he would still be held.... [71]

While jurors may generally believe either sinners or saints, their discretion is limited when it is proved beyond

question that an "eyewitness" was actually far away in prison or totally blind on the day of the crime.

Proper legal-sufficiency review prevents reviewing courts from substituting

Page 817

their opinions on credibility for those of the jurors, but proper review also prevents jurors from substituting their

opinions for undisputed truth. When evidence contrary to a verdict is conclusive, it cannot be disregarded.

E. Clear-and-Convincing Evidence

Since the time of Justice Calvert's article, new claims and burdens of proof have arisen that require additions

to the four types of no-evidence review Justice Calvert considered exhaustive. Beginning with the United States

Supreme Court's opinion in Jackson v. Virginia, appellate courts have recognized that, while "one slender bit of

evidence" may be all a reviewing court needs to affirm a verdict based on the preponderance of the evidence, a

higher burden of proof requires a higher standard of review.[72]As we recently stated, the standard for legal

sufficiency works in tandem with the standard of review—"whenever the standard of proof at trial is elevated, the

standard of appellate review must likewise be elevated." [73]If the rule were otherwise, legally sufficient evidence to

support a preponderance-of-the-evidence verdict would satisfy the higher burdens as well, thus rendering their

differences meaningless.[74]

Accordingly, we have held that a legal sufficiency review must consider all the evidence (not just that favoring

the verdict) in reviewing cases of parental termination,[75]defamation,[76]and punitive damages.[77]In such cases,

again, evidence contrary to a verdict cannot be disregarded.

F. Consciousness Evidence

Further, we have had to particularize legal-sufficiency review in cases involving what a party knew or why it

took a certain course, as they are not amenable to review under the exclusive standard.

Long before gross negligence had to meet a clear-and-convincing burden, we recognized in Burk Royalty Co. v.

Walls that no-evidence review of such findings had to include "all of the surrounding facts, circumstances, and

conditions, not just individual elements or facts."[78]As then Chief Justice Greenhill noted in concurring, speeding and

running a red light may not be legally sufficient evidence of gross negligence if one's wife and daughter are bleeding

to death in the back seat.[79]Reviewing courts assessing evidence of conscious indifference cannot disregard part of

what a party was conscious of.[80]

For the same reasons, the exclusive standard of review has proven problematic in insurance bad-faith cases.

Liability in

Page 818

such cases requires proof that the insurer denied coverage after it became reasonably clear.[81]But that standard will

always be met if reviewing courts must disregard any evidence that coverage was unclear.[82]Subsequent cases show

that reviewing courts are in fact looking at all the evidence to determine whether coverage was reasonably clear.[83]

This problem arises in other contexts as well. In discrimination cases, discharged employees will never have to

prove that the reason given for termination was a pretext if no-evidence review must disregard that

reason.[84]Government officials will never be entitled to immunity if we consider only evidence suggesting they should

have acted differently.[85]And limitations will never run under the discovery rule if reviewing courts must disregard all

evidence that claimants knew of their claims.[86]

This is not to say a reviewing court may credit a losing party's explanations or excuses if jurors could disregard

them. For example, while an insurer's reliance on an expert report may foreclose bad faith recovery,[87]it will not do

so if the insurer had some reason to doubt the report.[88]But a reviewing court cannot review whether jurors could

reasonably disregard a losing party's explanations or excuses without considering what they were.

III. Contrary Evidence That Must Be Disregarded

As trials normally focus on issues that jurors could decide either way, reviewing

Page 819

courts must disregard evidence contrary to the verdict far more often than they must consider it. Just as no-evidence

review that starts by disregarding contrary evidence often must end up considering considerably more, no-evidence

review that begins by considering all the evidence must usually end up considering considerably less.

Again, we do not presume to categorize all circumstances in which contrary evidence must be disregarded; a

few examples serve to demonstrate that even under the inclusive standard, viewing all the evidence in a light

favorable to the verdict often requires that much of it be disregarded.

A. Credibility Evidence

Jurors are the sole judges of the credibility of the witnesses and the weight to give their testimony.[89]They

may choose to believe one witness and disbelieve another.[90]Reviewing courts cannot impose their own opinions to

the contrary.[91]

Most credibility questions are implicit rather than explicit in a jury's verdict. Thus, reviewing courts must

assume jurors decided all of them in favor of the verdict if reasonable human beings could do so. Courts reviewing all

the evidence in a light favorable to the verdict thus assume that jurors credited testimony favorable to the verdict

and disbelieved testimony contrary to it.[92]

For example, viewing the evidence in the light favorable to the verdict means that if both parties in a traffic

accident testify they had the green light, an appellate court must presume the prevailing party did and the losing

party did not. If the parties to an oral contract testify to conflicting terms, a reviewing court must presume the terms

were those asserted by the winner. When all the evidence is viewed in the light most favorable to the jury verdict,

some of it must be completely discounted. Though not disregarded at the outset, the end result is the same.

This has always been our practice in cases using the inclusive scope of review. Thus, we have concluded that a

bailee sold cotton without the bailor's consent, despite the former's denials, because the jury verdict favored the

latter.[93]And we have affirmed a gross negligence verdict based on testimony that the defendant's speed was 80

miles per hour, without mentioning his own testimony to a speed half that.[94]

Nor is it necessary to have testimony from both parties before jurors

Page 820

may disbelieve either. Jurors may disregard even uncontradicted and unimpeached testimony from disinterested

witnesses.[95]Thus, an architect's uncontradicted testimony that he relied on a 20-year warranty was not binding on

jurors when the bid specifications he prepared included only much shorter warranties.[96]Nor was an insured's

uncontradicted testimony about lost furnishings binding on jurors when the fire scene contained several indications of

arson but few of burnt furniture.[97]Even uncontroverted expert testimony does not bind jurors unless the subject

matter is one for experts alone.[98]

Of course, "[t]he jury's decisions regarding credibility must be reasonable." [99]Jurors cannot ignore undisputed

testimony that is clear, positive, direct, otherwise credible, free from contradictions and inconsistencies, and could

have been readily controverted.[100]And as noted above, they are not free to believe testimony that is conclusively

negated by undisputed facts. But whenever reasonable jurors could decide what testimony to discard, a reviewing

court must assume they did so in favor of their verdict, and disregard it in the course of legal sufficiency review.

B. Conflicting Evidence

It is the province of the jury to resolve conflicts in the evidence.[101]Accordingly, courts reviewing all the

evidence in a light favorable to the verdict must assume that jurors resolved all conflicts in accordance with that

verdict.[102]

Again, this has always been the case even in those cases using the inclusive scope of review. For example, in

such cases we have sometimes detailed only the evidence that supported a jury's fraud finding.[103]We have affirmed

a bad-faith verdict for legal sufficiency despite "significant evidence" that the insurer acted in

Page 821

good faith.[104]We have found some evidence of lost profits, even though income tax returns showed the

contrary.[105]And we have affirmed a jury's negligence finding despite a defendant's evidence asserting it could not

have prevented the accident.[106]

In none of these cases did we state that the scope of review required us to disregard evidence contrary to the

verdict; instead, we started by considering the entire record in each. But in each case we either discounted or never

mentioned conflicting evidence contrary to the verdict because viewing the evidence in the light favorable to the

verdict required us to do so.

Of course, it is not always clear whether evidence is conflicting. Evidence is not conflicting just because the

parties cannot agree to it. For example, evidence that a hospital controlled a doctor's rotation and patient

assignments raises no material conflict with evidence that a different entity controlled the details of medical

treatment, as only the latter is material in a malpractice case.[107]Similarly, evidence showing the terms of one loan

does not conflict with undisputed evidence that the parties never reached an agreement regarding the terms of

another.[108]

But in every circumstance in which reasonable jurors could resolve conflicting evidence either way, reviewing

courts must presume they did so in favor of the prevailing party, and disregard the conflicting evidence in their legal

sufficiency review.

C. Conflicting Inferences

Even if evidence is undisputed, it is the province of the jury to draw from it whatever inferences they wish, so

long as more than one is possible and the jury must not simply guess. Thus, in product liability cases jurors may find

evidence of a defect from subsequent modifications, even if there were plenty of other reasons for the

changes.[109]Even if a defendant admits approaching an intersection from the wrong way on a one-way street, jurors

may infer the plaintiff failed to keep a proper lookout, as that is one possible inference from the accident

itself.[110]Similarly, jurors may infer that relatives tore down posters of a missing child to assist the child's father, even

though another inference was that the signs simply embarrassed them.[111]

Accordingly, courts reviewing all the evidence in a light favorable to the verdict must assume jurors made all

inferences in favor of their verdict if reasonable minds could, and disregard all other inferences in their legal

sufficiency review.

IV. Reconciling the Standards

Having noted the dual lines of authority stating the scope of no-evidence review, and the proper application

and exceptions to each, we turn to the question of which one is correct. For the reasons

Page 822

discussed below, we believe the answer is both.

A. Goals: The Standards Must Be The Same

Whether a court begins by reviewing all the evidence or disregarding part in a legal-sufficiency review, there

can be no disagreement about where that review should end. If the evidence at trial would enable reasonable and

fair-minded people to differ in their conclusions, then jurors must be allowed to do so.[112]A reviewing court cannot

substitute its judgment for that of the trier-of-fact, so long as the evidence falls within this zone of reasonable

disagreement.[113]

Similarly, there is no disagreement about how a reviewing court should view evidence in the process of that

review. Whether a reviewing court starts with all or only part of the record, the court must consider evidence in the

light most favorable to the verdict, and indulge every reasonable inference that would support it.[114]But if the

evidence allows of only one inference, neither jurors nor the reviewing court may disregard it.[115]

Given these premises, it is no coincidence that the two standards should reach the same result—indeed they

must. Any scope of appellate review smaller than what reasonable jurors could believe will reverse some verdicts that

are perfectly reasonable; any scope of review larger than what reasonable jurors could believe will affirm some

verdicts that are not.

Further, the two must coincide if this Court is to perform its constitutional duties. Although factual sufficiency

has been the sole domain of the intermediate appellate courts in Texas since 1891, our jurisdiction has always

included legal sufficiency, as that is a question of law, not of fact.[116]Construing either standard to require us to do

less would be just as unconstitutional as construing either to allow us to do more.

This is not to say judges and lawyers will always agree whether evidence is

Page 823

legally sufficient. As discussed more fully below, reasonable people may disagree about what reasonable jurors could

or must believe. But once those boundaries are settled, any standard of review must coincide with those

boundaries—affirming jury verdicts based on evidence within them and reversing jury verdicts based on evidence

that is not. Any standard that does otherwise is improperly applied.

B. Other Motions: The Standards Must Be The Same

Just as the scope of no-evidence review must coincide with its goals, the scope of review should not depend

upon the motion in which it is asserted. Judgment without or against a jury verdict is proper at any course of the

proceedings only when the law does not allow reasonable jurors to decide otherwise. Accordingly, the test for legal

sufficiency should be the same for summary judgments, directed verdicts, judgments notwithstanding the verdict,

and appellate no-evidence review.

Our statements of the standard for reviewing a directed verdict present the same mixed bag found with

general no-evidence review. We have most often used the exclusive standard, stating that courts reviewing directed

verdicts must consider only evidence supporting the non-movant's case and disregard all contrary evidence.[117]But

we have also stated that reviewing courts should use the inclusive standard, considering all the evidence in a light

contrary to the directed verdict.[118]And we have sometimes stated both, requiring reviewing courts to consider all the

evidence in a light contrary to the directed verdict and then to disregard all conflicting evidence that supports it.[119]

By contrast, cases concerning judgments non obstante verdicto most often utilize the inclusive scope of

review. Beginning with the 1931 amendment authorizing trial judges to grant them,[120]we have generally reviewed

such orders by considering all the evidence in a light favorable to the

Page 824

verdict that was set aside.[121]In later years we have sometimes adopted the exclusive standard,[122]but our opinions

doing so usually cite to general no-evidence cases in which no judgment n.o.v. was involved.[123]

The one exception in which both standards do not expressly appear is in the scope of review for summary

judgments. Here, there is only one standard—a reviewing court must examine the entire record in the light most

favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the

motion.[124]Reviewing courts do not disregard the evidence supporting the motion;

Page 825

if they did, all summary judgments would be reversed.

In practice, however, a different scope of review applies when a summary judgment motion is filed without

supporting evidence.[125]In such cases, evidence supporting the motion is effectively disregarded because there is

none; under the rule, it is not allowed. Thus, although a reviewing court must consider all the summary judgment

evidence on file, in some cases that review will effectively be restricted to the evidence contrary to the motion.

The standards for taking any case from the jury should be the same, no matter what motion is used. If only

one standard were proper, we would not expect both to appear in cases reviewing directed verdicts, judgments

notwithstanding the verdict, and summary judgments. But both do.

C. Federal Courts: The Standards Are The Same

The federal courts have had a similar split of authority between the inclusive and exclusive standards for scope

of review. But no longer—the United States Supreme Court recently concluded in Reeves v. Sanderson Plumbing

Products, Inc. that the two tests are the same.[126]

Under Rule 50 of the federal rules of procedure, a court should render judgment as a matter of law when

"there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue." [127]In

deciding whether all or only part of the evidence should be considered, the Supreme Court stated:

The Courts of Appeals have articulated differing formulations as to what evidence a court is to consider in ruling on a

Rule 50 motion. Some decisions have stated that review is limited to that evidence favorable to the nonmoving party,

while most have held that review extends to the entire record, drawing all reasonable inferences in favor of the

nonmovant.

On closer examination, this conflict seems more semantic than real. Those decisions holding that review under

Rule 50 should be limited to evidence favorable to the nonmovant appear to have their genesis in Wilkerson v.

McCarthy [128]. In Wilkerson, we stated that "in passing upon whether there is sufficient evidence to submit an issue

to the jury we need look only to the evidence and reasonable inferences which tend to support the case of the

nonmoving party. [129]But subsequent decisions have clarified that this passage was referring to the evidence to

which the trial court should give credence, not the evidence that the court should review. In the analogous context of

summary judgment under Rule 56, we have stated that the court must review the record "taken as a whole." And the

standard for granting summary judgment "mirrors" the standard for judgment as a matter of law, such that "the

inquiry under each is the same." It therefore follows that, in entertaining a motion for judgment as a

Page 826

matter of law, the court should review all of the evidence in the record.[130]

We address the Supreme Court's conclusion as to the most appropriate standard below; the relevant point

here is its conclusion that differences between the inclusive and exclusive standards are more semantic than real.

D. Objections: The Standards Are Not The Same

While we have used the two standards for the scope of review interchangeably for many years in many

different contexts, several arguments suggest they are not the same.

First, the courts of appeals often use the two standards in illustrations of the difference between legal and

factual sufficiency, with the exclusive standard tied to the former and the inclusive standard to the latter:

When [reviewing] legal sufficiency, we consider only the evidence and inferences that tend to support the award of

damages and disregard all evidence and inferences to the contrary. . . . When we review factual sufficiency, we

consider and weigh all of the evidence and will set aside the verdict only if it is so against the great weight and

preponderance of the evidence that it is clearly wrong and unjust.[131]

But there have always been exceptions to this distinction.[132]As demonstrated in Parts II and III above, it is

generally true that the result of legal-sufficiency review is to disregard contrary evidence, but there are exceptions

when a reviewing court cannot. It is not surprising that in drawing the general distinction between legal and factual

sufficiency, courts have not complicated that distinction by listing the several exceptions in which the scope of

review— though not the standard of review—may overlap.

Second, it has been argued that the exclusive standard "is an important prophylactic" against invasion of the

jury's province, as appellate judges are less likely to consider contrary evidence when they should not if the exclusive

standard is used.[133]But if that is true, the opposite should also be the case—appellate courts are less likely to

consider contrary evidence when they must (as shown in Part II) if the exclusive standard is used. No matter which

standard is used, appellate courts must take care not to consider or disregard too little or too much.

Page 827

Conversely, several factors appear to favor application of the inclusive standard. First, when we have said "we

must look only at that evidence which tends to support the judgment," [134]we could not have been speaking literally;

no glasses filter evidence, and judges cannot abandon such judgments to law clerks or litigants. It is often hard to

say whether evidence does or does not support a verdict—the same facts may support different conclusions,[135]or

may support one part of a verdict but not another.[136]Nor can evidence supporting a verdict be identified by which

party offered it—parties depend on admissions and cross-examination during their opponent's case, and minimize

damaging evidence by presenting it during their own. As a practical matter, a court cannot begin to say what

evidence supports a verdict without reviewing it all.

Second, an appellate court that begins by disregarding one party's evidence may strike many citizens as

extending something less than justice for all. Concerns about open government and open courts suggest an appellate

process that considers all the evidence, though deferring to the jury's verdict. While there is some dispute whether

Lady Justice should wear a blindfold,[137]the metaphor was surely never intended to suggest that justice disregards

the facts.

In sum, the exclusive standard is helpful in recognizing the distinctive roles of judge and jury, intermediate and

supreme court. By contrast, the inclusive standard is helpful in recognizing what courts actually do, and must be seen

to do. Both are important; we should avoid choosing between them if we can.

E. Conclusion: The Standards Are The Same

As both the inclusive and exclusive standards for the scope of legal-sufficiency review have a long history in

Texas, as both have been used in other contexts to review matter-of-law motions, as the federal courts have decided

the differences between the two are more semantic than real, and as both—properly applied—must arrive at the

same result, we see no compelling reason to choose among them.

The key qualifier, of course, is "properly applied." The final test for legal sufficiency must always be whether

the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review. Whether a

reviewing court begins by considering all the evidence or only the evidence supporting the verdict, legal-sufficiency

review in the proper light must credit favorable evidence if reasonable jurors could, and disregard contrary evidence

unless reasonable jurors could not.

While judges and lawyers often disagree about legal sufficiency in particular cases,

Page 828

the disagreements are almost always about what evidence jurors can or must credit and what inferences they can or

must make. It is inevitable in human affairs that reasonable people sometimes disagree; thus, it is also inevitable

that they will sometimes disagree about what reasonable people can disagree about. This is not a new problem;

Justice Calvert noted it almost fifty years ago:

The rule as generally stated is that if reasonable minds cannot differ from the conclusion that the evidence lacks

probative force it will be held to be the legal equivalent of no evidence. The application of the rule can lead to

strange results. It is theoretically possible, and sometimes not far from actual fact, that five members of the Supreme

Court will conclude that the evidence supporting a finding of a vital fact has no probative force, and in reaching the

conclusion through application of the rule will thus hold, in effect, that the trial judge who overruled a motion for

instructed verdict, the twelve jurors who found the existence of the vital fact, the three justices of the Court of Civil

Appeals who overruled a "no evidence" point of error and four dissenting justices of the Supreme Court are not men

[138]

of "reasonable minds." [139]

It is not hubris that occasionally requires an appellate court to find a jury verdict has no reasonable evidentiary

basis. As Justice Frankfurter stated long ago:

Only an incompetent or a wilful judge would take a case from the jury when the issue should be left to the jury. But

since questions of negligence are questions of degree, often very nice differences of degree, judges of competence

and conscience have in the past, and will in the future, disagree whether proof in a case is sufficient to demand

submission to the jury. The fact that [one] thinks there was enough to leave the case to the jury does not indicate

that the other [is] unmindful of the jury's function. The easy but timid way out for a trial judge is to leave all cases

tried to a jury for jury determination, but in so doing he fails in his duty to take a case from the jury when the

evidence would not warrant a verdict by it. A timid judge, like a biased judge, is intrinsically a lawless judge.[140]

V. Application to the Facts

It remains to apply the scope of review to the facts presented.

A majority of the court of appeals affirmed the verdict for the Wilsons, finding legally sufficient evidence that

the City knew increased flooding on the Wilsons' property was substantially certain to occur.[141]The majority pointed

to the following proof. First, the Wilsons' expert testified that the revised plan was certain to

Page 829

create flooding.[142]Second, as the City admittedly knew that development would increase runoff and the Sebastian

ditch would channel it toward the Wilsons, so it knew "with absolute certainty" that flooding would be the

result.[143]Third, the City "did not explain" why the Master Plan required a drainage ditch across the Wilsons' property

but the revised plan did not, thus allowing jurors to infer that the City knew this omission would cause flooding.[144]

Of course, the City did explain why it approved the new plan—because three sets of engineers said the

omitted ditch was unnecessary—but the court felt compelled by the scope of review to disregard that evidence.

For several of the reasons stated earlier, we believe the court of appeals did not properly apply the scope of

review. The critical question in this case was the City's state of mind—the Wilsons had to prove the City knew (not

should have known) that flooding was substantially certain. A reviewing court cannot evaluate what the City knew by

disregarding most of what it was told.

Moreover, when a case involves scientific or technical issues requiring expert advice (as this one does), jurors

cannot disregard a party's reliance on experts hired for that very purpose without some evidence supplying a

reasonable basis for doing so.[145]Here, it was uncontroverted that three sets of engineers certified that the revised

plans met the City's codes and regulations—and thus would not increase downstream flooding. The same firm that

drew up the original Master Plan certified the revised one; unless the City had some reason to know the first

certification was true and the second one was false (of which there was no evidence), there was only one logical

inference jurors could draw.

None of the evidence cited by the court of appeals showed the City knew more than it was told by the

engineers. The Wilsons' expert testified that flooding was (in his opinion) inevitable, but not that the City knew it was

inevitable. The Wilsons' expert gave no opinion on the latter point.

Second, ending a ditch at a neighbor's property line may be evidence that a defendant was substantially

certain of the result in some cases, but not in the context of this one. City witnesses admitted knowing development

would increase runoff at the head of this drainage system, but not flooding at its foot. Calculating the effect of

detention ponds and absorption in a grassy drainage ditch forty-five feet wide and over two hundred yards long

required hydrological formulas, computer models, and mathematical calculations. The omission of the ditch across

the Wilsons' property obviously raised concerns that the City investigated, but was no evidence that the City knew

the advice it received in response was wrong.

The Wilsons also point to a letter Sebastian's attorney wrote the City demanding indemnity in case the new

ditch flooded the Wilsons. But attorneys must protect a client from potential liability whether it is

Page 830

real or imagined—and justly so. In the letter, the attorney never purports to be an expert in hydrology, or cite the

opinions of anyone who was. This letter may have required the City to investigate, but again is no evidence it knew

the advice it received was wrong.[146]

Our concurring colleagues believe reasonable jurors could nevertheless disregard what all the engineers

certified because the City had a financial incentive to believe them rather than pay the Wilsons. Of course,

defendants have a financial incentive to avoid paying damages in every case; if that incentive alone is some evidence

of liability, then plaintiffs create enough evidence to go to the jury every time they file suit.

But more important, this ignores what the Wilsons had to prove—not that the City might have disbelieved the

engineers' reports, but that it did. This requires evidence of "objective indicia of intent" showing the City knew

identifiable harm was occurring or substantially certain to result.[147]Jurors' doubts about the engineers' reports or the

City's motives could not supply them with objective indicia that the City knew flooding would occur. Constitutional

concerns about the roles of judge and jury do not allow either to make such evidence up.

We agree with the court of appeals that the Wilsons presented some evidence that the City damaged their

property, and that in drawing up and approving drainage plans it was acting for a public purpose. The missing piece

in the evidence here is proof that the City knew the plans it approved were substantially certain to increase flooding

on the Wilsons' properties. While the City certainly knew that fact after the flooding started, the Wilsons never

pleaded or submitted to the jury any takings theory other than the City's initial approval.

Crediting all favorable evidence that reasonable jurors could believe and disregarding all contrary evidence

except that which they could not ignore, we hold there was no evidence the City's approval of the revised drainage

plan was an intentional taking.

Accordingly, we reverse the court of appeals' judgment against the City under article I, section 17 of the Texas

Constitution. Because the court of appeals declined to address the jury's alternate verdict for the Wilsons on a claim

under the Texas Water Code, we remand the case to that court to determine that issue.

Justice O'NEILL filed a concurring opinion in which Justice MEDINA joined.

Justice JOHNSON did not participate in the decision.

Justice O'NEILL, joined by Justice MEDINA, concurring.

The Court does an excellent job of explaining the appropriate scope of no-evidence review: the reviewing court

"must view the evidence in the light favorable to the verdict, crediting favorable evidence if reasonable jurors could,

and disregarding contrary evidence unless reasonable jurors could not." 168 S.W.3d at 807. I agree with this

standard and join Parts I through IV of the Court's opinion. But I cannot join Part V, because the Court misapplies

the standard that it so carefully

Page 831

articulates by crediting evidence the jury could reasonably disregard.

The City of Keller's Master Drainage Plan required it in part to condemn a 2.8-acre drainage easement on the

Wilson property for construction of an earthen channel forty-five feet wide and five feet deep that would funnel

water from the adjoining Sebastian property over the Wilson property into the Little Bear Creek Watershed. The City

chose not to proceed with this portion of the plan, though, claiming reliance on engineers' assurances that the

developers' installation of retention ponds on neighboring land could prevent flooding. The drainage channel that was

actually built ended at the edge of the Sebastian property and funneled water directly onto the Wilsons' land,

destroying eight acres of farmland worth almost $300,000. The Court holds that the jury was required to believe the

City's testimony that it relied on the engineers' assurances and thus did not know flooding was substantially certain

to occur, stating that when a case requires expert testimony "jurors cannot disregard a party's reliance on experts

hired for that very purpose without some evidence supplying a reasonable basis for doing so." 168 S.W.3d at 829.

Even if this were an appropriate review standard—which it hasn't been until today—I believe the jury had a

reasonable basis upon which to disregard the City's professed reliance; the City had a financial incentive to disclaim

knowledge of the flooding, and the Wilsons presented some evidence that the City had independent knowledge

flooding was substantially certain to occur. In my view, the jury was the proper body to weigh the witnesses'

credibility and resolve these disputed fact issues. I nevertheless agree that the City cannot be liable for a taking in

this case because I believe that a city's mere act of approving a private development plan cannot constitute a taking

for public use. Accordingly, I concur in the Court's judgment but not its reasoning.

I

Questions of intent are generally proved only by circumstantial evidence; as the court of appeals in this case

aptly noted, "defendants will rarely admit knowing to a substantial certainty that given results would follow from their

actions," and therefore the jury must be "free to discredit defendants' protestations that no harm was intended and

to draw inferences necessary to establish intent." 86 S.W.3d 693, 704. I agree with the Court that the jury's ability to

disbelieve the City's protestations is not itself "evidence of liability." 168 S.W.3d at 830. Instead, the jury's ability to

weigh the witnesses' credibility means that the City's testimony did not conclusively establish its lack of liability.

Because liability is not conclusively negated, we must examine the record to see if there is legally sufficient evidence

from which the jury could infer that the City knew flooding was substantially certain to occur. I would hold that the

evidence of intent that was presented in this case allowed the jury to draw such an inference.

At trial, the Wilsons presented evidence that the City had independent sources of knowledge that flooding was

substantially certain to occur. First, they demonstrated that the developers' plan itself was flawed. Rather than

incorporate a drainage ditch running across the Wilson property, as the City's Master Plan required, the developers'

plan ended the drainage ditch abruptly at the edge of the Wilson property. The Wilsons' expert testified that the

plan's implementation would necessarily "increase the volume and flow of water across the Wilson property from the

rate of fifty-five cubic feet per second to ninety-three cubic feet per second." 86 S.W.3d at 703.

Page 832

Second, the City was aware that water flowed across the Wilson property before the development commenced, and,

as the court of appeals pointed out, the City's Director of Public Works admitted that the City knew the development

would increase the water's flow and velocity; specifically, he testified that "the City knew the upstream water would

be absorbed less and would flow faster due to the removal of trees and vegetation from the developments and from

the forty-five-foot-wide earthen channel" that ended at the Wilson property's edge. Id. at 705. Finally, there was

evidence that the City received a letter warning that the developers' plan would subject the Wilson property to

flooding.

While I believe there is some evidence that the City knew flooding was substantially certain to occur, there is

also some evidence that it did not. City officials testified that they relied on the representations of engineers who

assured them retention ponds could substitute for a drainage easement and the Wilson property would not be

damaged. If the jury accepted this evidence as true, I agree that the intent element would be negated, which would

preclude the City's takings liability. But I do not agree that the jury was bound to accept the City's testimony as true.

The Court itself notes that jurors "may choose to believe one witness and disbelieve another," and that "[c]ourts

reviewing all the evidence in a light favorable to the verdict thus assume that jurors credited testimony favorable to

the verdict and disbelieved testimony contrary to it." 168 S.W.3d at 819. This statement mirrors our prior

jurisprudence, which has long provided that a jury "has several alternatives available when presented with conflicting

evidence" because it "may believe one witness and disbelieve others," "may resolve inconsistencies in the testimony

of any witness," and "may accept lay testimony over that of experts." McGalliard v. Kuhlmann, 722 S.W.2d 694, 697

(Tex.1986) (citations omitted).

As the Court itself states, jurors are required to credit undisputed testimony only when it is "clear, positive,

direct, otherwise credible, free from contradictions and inconsistencies, and could have been readily controverted."

168 S.W.3d at 820. The City's testimony does not meet this standard. The City Manager did testify that the City

"would not have approved the developments unless [it was] assured that the developments did not increase the

velocity of water or the flow of water" onto the neighboring property. 86 S.W.3d at 706. But the Wilsons disputed

whether the City's protestations were credible, pointing out that the City had a powerful incentive to profess a lack of

knowledge through reliance on the engineers' assurances because it would then avoid the considerable expense of

compensating the Wilsons for the property that would otherwise have been condemned under the Master Drainage

Plan. See id. at 705.

Moreover, the Court's conclusion that juries cannot disregard a party's reliance on expert opinions is not

consistent with our jurisprudence. The Court cites two cases for this proposition, but neither supports the Court's

analysis; instead, both cases support the conclusion that the jury, as the finder of fact, should appropriately resolve

factual disputes regarding a party's reliance on hired experts. Provident Am. Ins. Co. v. Castañeda, 988 S.W.2d 189,

194-95 (Tex.1998); State Farm Lloyds v. Nicolau, 951 S.W.2d 444, 448-50 (Tex.1997).

In Castañeda, a bad-faith insurance case, there was no question that the insurer had relied on an expert's

assurances and thus no dispute about whether the

Page 833

jury could have disregarded that evidence. Castañeda, 988 S.W.2d at 194-95. In that case, we performed a

traditional legal sufficiency analysis and concluded there was no evidence that the defendant acted in bad faith. Id.

at 194. We did state that reliance on an expert's opinion will not preclude a finding of bad faith if the expert's opinion

was "unreliable and the insurer knew or should have known that to be the case." Id. However, we did not hold that

the jury must credit a party's testimony that it relied on an expert.

We reiterated this point in Nicolau, another bad-faith insurance case. There, the Court noted "we have never

held that the mere fact that an insurer relies upon an expert's report to deny a claim automatically forecloses bad

faith recovery as a matter of law," and again concluded that purported "reliance upon an expert's report, standing

alone, will not necessarily shield" the defendant from liability. Nicolau, 951 S.W.2d at 448. The Court conceded that

"[w]ere we the trier of fact in this case, we may well have concluded that [the insurer] did not act in bad faith," but

concluded that the "determination is not ours to make" because "the Constitution allocates that task to the jury and

prohibits us from reweighing the evidence." Id, at 450 (citing Tex. Const, art. I, § 15, art. V, §§ 6, 10).

The same is true in this case. The jury was not required to believe that the City did not know flooding was

substantially certain to occur because it relied on assurances to the contrary; as a reviewing Court, we should

"assume that jurors credited testimony favorable to the verdict and disbelieved testimony contrary to it." 168 S.W.3d

at 819. Such credibility determinations are uniquely suited and constitutionally committed to the fact finder. See Tex.

Const, art. I, § 15, art. V, § 6; see also Nicolau, 951 S.W.2d at 450.

II

Although I disagree with the Court's conclusion that the jury was required to credit the City's testimony, I

agree with its judgment in the City's favor because, in my view, the City's mere approval of the private development

plans did not result in a taking for public use, as the constitutional standard requires for a compensable taking. Tex.

Const, art. I, § 17. The City did not appropriate or even regulate the use of the Wilsons' land, nor did it design the

drainage plan for the proposed subdivisions. Instead, the City merely approved subdivision plans designed by private

developers, and that design included inadequate drainage capabilities. The City argues, and I agree, that its mere

approval of private plans did not transfer responsibility for the content of those plans from the developers to the City.

Municipalities review subdivision plats "to ensure that subdivisions are safely constructed and to promote the orderly

development of the community." City of Round Rock v. Smith, 687 S.W.2d 300, 302 (Tex.1985); see Tex. Loc. Gov't

Code § 212.002. Such a review is intended to protect the city's residents; it is not intended to transfer responsibility

for a flawed subdivision design from the developers to the municipality. See, e.g., City of Round Rock, 687 S.W.2d at

302; see also Cootey v. Sun Inv., Inc., 68 Haw. 480, 718 P.2d 1086, 1091 (1986) (holding that "[t]he permit process

by which the County approves or disapproves the development of a proposed subdivision reflects an effort by

government to require the developer to meet his responsibilities under the subdivision rules, regulations, and laws,"

and that "the primary responsibility of providing an adequate and safe development rests with . . . the developer,

and not with the County").

Because the primary responsibility for a development's design rests with the developer,

Page 834

and because the plat-approval process does not transfer such responsibility to the municipality, mere plat approval

cannot be a basis upon which to predicate takings liability. We have held that, to be liable for a taking, a

governmental entity must "perform certain acts in the exercise of its lawful authority . . . which resulted in the taking

or damaging of plaintiffs' property, and which acts were the proximate cause of the taking or damaging of such

property." State v. Hale, 136 Tex. 29, 146 S.W.2d 731, 736 (1941) (emphasis added). In this case, flooding resulted

from the developers' defective drainage design, not from the City's approval of the plat; thus, the City's approval was

not the proximate cause of the damage to the Wilson property.

Other courts, faced with similar facts, have also concluded that a governmental entity cannot be liable for a

taking when its only action is to approve a private development plan. See Phillips v. King County, 136 Wash.2d 946,

968 P.2d 871, 879 (1998); see also Pepper v. J.J. Welcome Constr. Co., 73 Wash.App. 523, 871 P.2d 601, 606

(1994). In Phillips, the Washington Supreme Court observed that there is no public aspect to a private development

and concluded that "[i]f the county or city were liable for the negligence of a private developer, based on approval

under existing regulations, then the municipalities, and ultimately the taxpayers, would become the guarantors or

insurers for the actions of private developers whose development damages neighboring properties." Phillips, 968 P.2d

at 878. The court in Pepper similarly examined an inverse condemnation claim based upon a county's approval of

private developments with defective drainage plans; it, too, concluded that the county's approval did not cause the

resultant flooding and did not result in an unconstitutional taking. Pepper, 871 P.2d at 606. The court noted that the

flooding was "not the result of the County appropriating or regulating their use of the land," and held that "[t]he fact

that a county regulates development and requires compliance with road and drainage restrictions does not transform

a private development into a public project." Id. The court concluded that because "land use regulation of [the

plaintiffs'] property did not cause the damages, no inverse condemnation was involved." Id. I am persuaded by the

reasoning of the courts in Phillips and Pepper, and would similarly conclude that the City's plat approval in this case

did not amount to an unconstitutional taking as a matter of law.

The court of appeals in this case advanced an alternative reason for affirming the trial court's judgment,

suggesting that even if the City could not be liable for merely approving a subdivision plat, it could nevertheless be

held liable for failing to condemn a drainage easement across the Wilson property. 86 S.W.3d at 707. The court of

appeals stated that "the City chose not to condemn any of the Wilson property," but instead "allow[ed] the water

flowing from the Sebastian easement to discharge, uncontrolled, across the Wilson property." Id. As noted above,

however, it was the developers' plan—not the City's actions—that allowed the water to flood the Wilson property.

Because the City's action did not cause the flooding, I disagree that the City's failure to condemn an easement is

relevant to takings liability. If the City were responsible for the flooding but chose not to condemn the property, it

might be subject to inverse-condemnation liability. See Tarrant County Reg'l Water Dist. v. Gragg, 151 S.W.3d 546,

554 (Tex.2004) ("When the government takes private property without first paying for it, the owner may recover

damages for inverse condemnation."). However, if a governmental entity's actions are not the

Page 835

"proximate cause of the taking or damaging" of the property, then the entity cannot be liable for a taking. Hale, 146

S.W.2d at 736. Accordingly, the entity need not condemn property merely because a private entity is causing

damage. This rule does not leave owners of flooded property without a remedy; when a private development floods

neighboring land, the owner of the damaged property will ordinarily have recourse against the private parties causing

the damage. See Tex. Water Code § 11.086(a), (b) (providing that "[n]o person may divert or impound the natural

flow of surface waters in this state ... in a manner that damages the property of another by the overflow of the water

diverted or impounded" and that "[a] person whose property is injured by an overflow of water caused by an

unlawful diversion or impounding has remedies at law and in equity and may recover damages occasioned by the

overflow"). Because the developers' design of the plat— not the City's approval—caused the flooding damage in this

case, I would hold that the City cannot be held liable for an unconstitutional taking under Article I, Section 17 of the

Texas Constitution.

III

Because I believe the Court fails to give due regard to the jury's right to make credibility determinations, I

cannot join Part V of the Court's opinion. But because I conclude that the City's mere act of approving a private

development plan did not cause the Wilson property to be "taken, damaged or destroyed for or applied to public

use," Tex. Const, art. I, § 17, I agree that the City cannot be held liable for a taking in this case. Accordingly, I

concur in the Court's judgment.

---------

Notes:

[1]

The City of Fort Worth asserts in an amicus brief that in 2001 alone it approved 325 subdivision plats creating 5,857 residential lots within

its extraterritorial jurisdiction, which of course excludes surrounding communities.

[2]

Evidence at trial and briefs by amici indicate that cities normally acquire title to these easements to ensure they are properly mowed and

maintained after the developers' departure.

[3]

Tex. Const, art. I, § 17; City of Dallas v. Jennings, 142 S.W.3d 310, 313-14 (Tex.2004).

[4]

86S.W.3d693, 715, 717.

[5]

Id. at 700.

[6]

See, e.g., Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 739 (Tex.2003) (per curiam); Bradford v. Vento, 48 S.W.3d 749, 754 (Tex.

2001); City of Fort Worth v. Zimlich, 29 S.W.3d 62, 69 (Tex.2000); Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998);

Cont'l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996); Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995);

Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 928 (Tex. 1993); Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 84 (Tex. 1992);

Weirich v. Weirich, 833 S.W.2d 942, 945 (Tex. 1992); Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 458 (Tex.1992); Lewelling v.

Lewelling, 796 S.W.2d 164, 166 (Tex. 1990); Burkard v. ASCO Co., 779 S.W.2d 805, 806 (Tex. 1989) (per curiam); Brown v. Edwards

Transfer Co., 764 S.W.2d 220, 223 (Tex. 1988); City of Gladewater v. Pike, 727 S.W.2d 514, 518 (Tex.1987); King v. Bauer, 688 S.W.2d

845, 846 (Tex. 1985); Tomlinson v. Jones, 677 S.W.2d 490, 492 (Tex. 1984); Glover v. Tex. Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex.

1981) (per curiam); Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965); Wininger v. Ft.

Worth & D.C. Ry. Co., 105 Tex. 56, 143 S.W. 1150, 1152 (1912).

[7]

See, e.g., St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 519 (Tex.2002) (plurality op.); Associated Indem. Corp. v. CAT Contracting, Inc., 964

S.W.2d 276, 285-86 (Tex. 1998); State Farm Lloyds Ins. Co. v. Maldonado, 963 S.W.2d 38, 40 (Tex. 1998); Formosa Plastics Corp. v.

Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998); Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997);

White v. Southwestern Bell Tel. Co., 651 S.W.2d 260, 262 (Tex. 1983); Burk Royalty v. Walls, 616 S.W.2d 911, 922 (Tex. 1981); Harbin v.

Seale, 461 S.W.2d 591, 592 (Tex. 1970); De Winne v. Allen, 154 Tex. 316, 277 S.W.2d 95, 97 (1955); Hall v. Med. Bldg. of Houston, 151

Tex. 425, 251 S.W.2d 497, 498(1952).

[8]

Tarrant Reg'l Water Dist. v. Gragg, 151 S.W.3d 546, 552 (Tex.2004); Bostrom Seating, Inc. v. Crane Carrier Co., 140 S.W.3d 681, 684

(Tex.2004); Lozano v. Lozano, 52 S.W.3d 141, 144 (Tex.2001) (per curiam); La.-Pac. Corp. v. Andrade, 19 S.W.3d 245, 247 (Tex. 1999);

Latham v. Castillo, 972 S.W.2d 66, 68 (Tex. 1998); Brown v. Bank of Galveston, Nat'l Ass'n, 963 S.W.2d 511, 513 (Tex. 1998).

[9]

See, e.g., Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 234 (Tex. 2004); Szczepanik v. First S. Trust Co., 883

S.W.2d 648, 649 (Tex. 1994) (per curiam); compare Biggers v. Cont'l Bus Sys., Inc., 157 Tex. 351, 303 S.W.2d 359, 363 (1957) ("We may

consider only that evidence, if any, which, viewed in its most favorable light, supports the jury findings, and we must disregard all evidence

which would lead to a contrary result.") (emphasis added), with Biggers v. Cont'l Bus Sys., Inc., 157 Tex. 351, 298 S.W.2d 79, 81 (1956)

("[T]he duty of this Court [is] to examine and consider all of the evidence bearing on the controlling issues, and having done so to decide

whether there is evidence of probative value to support the answers made by the jury to the issues.") (quotation omitted) (emphasis

added), and Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696, 698 (1914) ("[W]e must reject all evidence favorable to the plaintiffs in

error, and consider only the facts and circumstances which tend to sustain the verdict.... In considering this question, we must take into

account all of the facts and circumstances attending the transaction.").

[10]

See, e.g., W. Wendell Hall, Standards of Review in Texas, 34 ST. MARY'S L.J. 1, 159-62 (2002); William V. Dorsaneo, III, Judges, Juries,

& Reviewing Courts, 53 SMU L.R. 1497, 1498, 1507-11 (2000); Phil Hardberger, Juries Under Siege, 30 St. Mary's L.J. 1, 40-41 (1998). But

see William Powers, Jr., Judge & Jury in the Texas Supreme Court, 75 Tex. L.Rev. 1699, 1699-1700, 1704-19 (1997) (concluding the Court is

not changing the no-evidence standard of review but is moving away from broad definitions of duty and toward particularized definitions of

duty).

[11]

Robert W. Calvert was an associate justice of this Court from 1950 to 1960, and Chief Justice from 1961 to 1972.

[12]

Robert W. Calvert, "No Evidence" & "Insufficient Evidence" Points of Error, 38 Tex. L.Rev. 361 (1960).

[13]

Id. at 361.

[14]

"Most of what has been said here is repetitious of what has been said before in the cited cases and articles. The purpose of the writer

here has been to try to bring former writings on the subject into compact form and under somewhat closer analysis." Id. at 371.

[15]

Id. at 362-63.

[16]

See, e.g., King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.2003); Marathon Corp. v. Pitzner, 106 S.W.3d 724, 727 (Tex.2003)

(per curiam); Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998); Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 409

(Tex. 1998); Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997); Anderson v. City of Seven Points, 806 S.W.2d 791, 795

n. 3 (Tex. 1991); Cecil v. Smith, 804 S.W.2d 509, 510 n. 2 (Tex. 1991); Juliette Fowler Homes, Inc. v. Welch Assocs., Inc., 793 S.W.2d 660,

666 n. 9 (Tex. 1990).

[17]

Calvert, supra note 12, at 364.

[18]

See In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002); Uniroyal, 977 S.W.2d at 340; Triton Oil & Gas Corp. v. Marine Contractors & Supply,

Inc., 644 S.W.2d 443, 446 (Tex. 1982).

[19]

Calvert, supra note 12, at 364 ("If there is an absolute absence of evidence of a vital fact ... an appellate court has no occasion to

concern itself with an abstract rule such as how minds of reasonable men might view the situation.").

[20]

New Times, Inc. v. Isaacks, 146 S.W.3d 144, 158-59 (Tex.2004); Turner v. KTRK Television, Inc., 38 S.W.3d 103, 114 (Tex.2000); Guisti

v. Galveston Tribune, 105 Tex. 497, 150 S.W. 874, 877-78 (1912).

[21]

Bentley v. Bunton, 94 S.W.3d 561, 581 (Tex.2002) (considering remarks in context of series of talk-show programs); Turner, 38 S.W.3d

at 115 (holding defamation includes story in which details are right but gist is wrong).

[22]

Shell Oil Co. v. Khan, 138 S.W.3d 288, 292 (Tex.2004).

[23]

DeWitt County Elec. Co-op., Inc. v. Parks, 1 S.W.3d96, 102 (Tex. 1999).

[24]

Tiller v. McLure, 121 S.W.3d 709, 714 (Tex. 2003) (per curiam); see also Tex. Farm Bureau Mut. Ins. Cos. v. Sears, 84 S.W.3d 604, 610-

11 (Tex.2002); GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605, 612 (Tex. 1999).

[25]

See George Grubbs Enters., Inc. v. Bien, 881 S.W.2d 843, 852-53 (Tex.App.-Fort Worth 1994) (holding that efforts to pressure deaf-mute

consumer to buy car were legally sufficient evidence of intentional infliction), rev'd on other grounds, 900 S.W.2d 337, 338 (Tex. 1995).

[26]

See Tiller, 121 S.W.3d at 714 (holding efforts to pressure widow of contracting party to complete project were legally insufficient evidence

of intentional infliction).

[27]

See, e.g., id. at 713-14 (discussing contrary evidence showing defendant's reasonable concerns about timeliness of plaintiff's work);

Sears, 84 S.W.3d at 612 (discussing contrary evidence that defendant believed claimant was involved in suspicious dealings).

[28]

Bostrom Seating, Inc. v. Crane Carrier Co., 140 S.W.3d 681, 684, 685 (Tex.2004) (holding no evidence supported defect as comments

from deposition "were read out of context").

[29]

Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 232 n. 1 (Tex. 2004) (citing Henry v. Phillips, 105 Tex. 459, 151

S.W. 533, 538 (1912)). This rule was changed for hearsay evidence in 1983. See Tex.R. Evid. 802 ("Inadmissible hearsay admitted without

objection shall not be denied probative value merely because it is hearsay.").

[30]

Tex. & P. Ry. Co. v. Ball, 96 Tex. 622, 75 S.W. 4, 6 (1903).

[31]

Minyard Food Stores, Inc. v. Goodman, 80 S.W.3d 573, 579 (Tex.2002) (holding defamation was not in course and scope of employment

as duties required employee to cooperate in investigation but not to lie); Robertson Tank Lines, Inc. v. Van Cleave, 468 S.W.2d 354, 360

(Tex.1971) (holding truck driver was not in course of employment during social visit to his father).

[32]

Bowles v. Bourdon, 148 Tex. 1,219 S.W.2d 779, 782-83 (1949) (affirming directed verdict against malpractice claim as inadequate expert

testimony from doctor of same school or practice as defendant rendered proof legally insufficient).

[33]

See Leitch v. Hornsby, 935 S.W.2d 114, 119 (Tex. 1996).

[34]

See Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499-500 (Tex. 1995) (holding opinion that spray caused frostbite was legally

insufficient as it assumed absence of redness when plaintiff admitted the contrary); Roark v. Allen, 633 S.W.2d 804, 809 (Tex. 1982)

(holding opinion that physician should have warned of possible skull fracture was legally insufficient as it assumed physician was aware of

fracture when there was no proof he was).

[35]

See E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995) (adopting reasoning of Daubert v. Merrell Dow

Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)).

[36]

Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 714, 720 (Tex. 1997).

[37]

Id. at 711, 724-30.

[38]

Kerr-McGee Corp. v. Helton, 133 S.W.3d 245, 254-57 (Tex.2004).

[39]

Calvert, supra note 12, at 364.

[40]

Id. at 364-65.

[41]

Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.2004) (holding evidence that truck caught fire unaccompanied by proof identifying

any defect did not exceed a scintilla, as jurors would have to guess cause); Marathon Corp. v. Pitzner, 106 S.W.3d 724, 729 (Tex.2003) (per

curiam); Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387, 392 (Tex. 1997); W. Tel. Corp. v. McCann, 128 Tex. 582, 99 S.W.2d 895, 900

(Tex. 1937); Calvert, supra note 12, at 365.

[42]

Tubelite, a Div. of Indal, Inc. v. Risica & Sons, Inc., 819 S.W.2d 801, 805 (Tex.1991); see also Litton Indus. Prods., Inc. v. Gammage, 668

S.W.2d 319, 324 (Tex. 1984) (citing Tex. Sling Co. v. Emanuel, 431 S.W.2d 538, 541 (Tex. 1968)).

[43]

Lozano, 52 S.W.3d at 167.

[44]

Calvert, supra note 12, at 365.

[45]

Id.

[46]

Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 938 (Tex. 1998).

[47]

See Marathon Corp. v. Pitzner, 106 S.W.3d 724, 729 (Tex.2003) (per curiam); McCann, 99 S.W.2d at 900.

[48]

Calvert, supra note 12, at 363-64. But other commentators disagree. See Powers, supra note 10, at 1703-10. We have held that a

"conclusively and as a matter of law" point may be asserted under a "no evidence" point. O'Neil v. Mack Trucks, Inc., 542 S.W.2d 112, 113

(Tex. 1976). And the cases in this section note that conclusive proof is often asserted by parties that do not carry the burden of proof. See

also Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex.2001) (per curiam) (court must first examine record for evidence supporting

verdict, ignoring all evidence to the contrary; if there is no such evidence, the court then examines the entire record to see if the contrary

finding is established as a matter of law).

[49]

Calvert, supra note 12, at 363-64. But see, e.g., Cecil v. Smith, 804 S.W.2d 509, 510 n. 2 (Tex. 1991) ("Cecil's points that (1) there was

no evidence to support the findings and (2) the contrary of each finding was established as a matter of law will hereinafter collectively be

referred to as her "no evidence" points.").

[50]

St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 519-20 (Tex.2002) (plurality op.) (quoting Universe Life Ins. Co. v. Giles, 950 S.W.2d 48, 51 n.

1 (Tex. 1997)).

[51]

Tex. & N.O.R Co. v. Burden, 146 Tex. 109, 203 S.W.2d 522, 528, 530 (1947); see also Prudential Ins. Co. of Am. v. Krayer, 366 S.W.2d

779, 783 (Tex. 1963) (finding evidence of suicide undisputed after disregarding disputed portion of facts).

[52]

Sullivan v. Barnett, 471 S.W.2d 39, 44 (Tex. 1971); Wright v. Vernon Compress Co., 156 Tex. 474, 296 S.W.2d 517, 523 (1956) ("[T]he

trial court is required to submit only controverted issues. No jury finding is necessary to establish undisputed facts."); Clark v. Nat'l Life &

Accident Ins. Co., 145 Tex. 575, 200 S.W.2d 820, 822 (1947) ("Uncontroverted questions of fact need not be and should not be submitted

to the jury for its determination."); S. Underwriters v. Wheeler, 132 Tex. 350, 123 S.W.2d 340, 341 (Tex.1939).

[53]

County of Bexar v. Santikos, 144 S.W.3d 455, 460-61 (Tex.2004).

[54]

PPG Indus., Inc. v. JMB/Houston Ctrs. Partners Ltd. P'ship, 146 S.W.3d 79, 97-98 (Tex. 2004).

[55]

State Farm Lloyds Ins. Co. v. Maldonado, 963 S.W.2d 38, 40 (Tex. 1998).

[56]

Wal-Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 709-10 (Tex.2003) (per curiam).

[57]

See Johnson & Johnson Med., Inc. v. Sanchez, 924 S.W.2d 925, 930 (Tex. 1996).

[58]

King v. Graham, 126 S.W.3d 75, 78-79 (Tex.2003) (per curiam) (holding no evidence supported malicious prosecution claim as district

attorney admitted prosecution was due to item he overlooked rather than any false statements by defendants).

[59]

Travelers Ins. Co. v. Seabolt, 361 S.W.2d 204, 206 (Tex. 1962) (return to regular job in which use of hand was required conclusively

established claimant did not suffer total loss of use).

[60]

Navarette v. Temple Indep. Sch. Dist., 706 S.W.2d 308, 309-10 (Tex.1986) (return to work did not conclusively establish injury was not

total as claimant could not do regular work and employer voluntarily accommodated her with lesser duties).

[61]

See, e.g., Prudential Ins. Co. of Am. v. Krayer, 366 S.W.2d 779, 783 (Tex. 1963).

[62]

See Republic Nat'l Life Ins. Co. v. Heyward, 536 S.W.2d 549, 552 (Tex. 1976).

[63]

Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 340 (Tex. 1998); Triton Oil & Gas Corp. v. Marine Contractors & Supply, Inc., 644

S.W.2d 443, 446 (Tex. 1982).

[64]

811 S.W.2d 557, 560 (Tex. 1991).

[65]

Id. at 558.

[66]

Id. at 560. In defense of jurors, it should be noted that the trier-of-fact in Murdock was a judge.

[67]

135 Tex. 7, 136 S.W.2d 1113, 1115 (1940).

[68]

Id.

[69]

Id.

[70]

Clewis v. State, 922 S.W.2d 126, 133 n. 12 (Tex.Crim.App.1996) (en banc) (citation omitted).

[71]

Hotchkiss v. Nat'l City Bank, 200 F. 287, 293 (S.D.N.Y.1911).

[72]

443 U.S. 307, 320 n. 14, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

[73]

Southwestern Bell Tel. Co. v. Garza, 164 S.W.3d 607, 627 (Tex.2004).

[74]

Our sister court reviews the legal sufficiency of criminal convictions by considering "all evidence which the jury was permitted, whether

rightly or wrongly, to consider" in the light most favorable to the prosecution. Moff v. State, 131 S.W.3d 485, 488 (Tex.Crim.App. 2004); see

also Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex.Crim.App. 2004).

[75]

In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002).

[76]

Bentley v. Bunton, 94 S.W.3d 561, 596 (Tex.2002); Turner v. KTRK Television, Inc., 38 S.W.3d 103, 120 (Tex.2000).

[77]

Garza, 164 S.W.3d at 627.

[78]

616S.W.2d911, 922 (Tex.1981).

[79]

Id. at 926 (Greenhill, C.J., concurring).

[80]

See Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 234-35 (Tex. 2004).

[81]

Universe Life Ins. Co. v. Giles, 950 S.W.2d 48, 55-56 (Tex. 1997).

[82]

See id. at 51 (noting same problem with previous test whether insurer had reasonable basis for denying claim).

[83]

See Rocor Int'l, Inc. v. Nat'l Union Fire Ins. Co., 77 S.W.3d 253, 262-63 (Tex.2002) (finding no evidence of bad faith based in part on

defendant's correspondence showing misunderstanding regarding settlement terms); State Farm Fire & Cas. Co. v. Simmons, 963 S.W.2d

42, 45 (Tex. 1998)(affirming bad-faith verdict after noting that insurer gave contradictory reasons for not interviewing potential arsonists);

Minn. Life Ins. Co. v. Vasquez, 133 S.W.3d 320, 330 (Tex.App.-Corpus Christi 2004, pet. filed) (finding some evidence of bad faith because,

though insurer showed hospital stymied its efforts to obtain records, insurer failed to seek same information from other sources); Allstate

Tex. Lloyds v. Mason, 123 S.W.3d 690, 704-06 (Tex.App.-Fort Worth 2003, no pet.) (reversing bad-faith verdict for legal insufficiency

because insurer reasonably relied on expert report); Allison v. Fire Ins. Exch., 98 S.W.3d 227, 249-50 (Tex.App.-Austin 2002, pet. granted,

judgm't vacated w.r.m.) (affirming bad-faith verdict after reviewing insurer's reasons for delay and insured's responsive evidence); Oram v.

State Farm Lloyds, 977 S.W.2d 163, 167 (Tex.App.-Austin 1998, no pet.) (reversing bad-faith verdict for legal insufficiency because insurer's

interpretation of exclusion was reasonable though incorrect).

[84]

Wal-Mart Stores, Inc. v. Canchola, 121 S.W.3d 735, 740 (Tex.2003) (per curiam) (noting liability may be established by proof of

discrimination plus proof employer's reason was pretext); Cont'l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 452 (Tex. 1996) (same).

[85]

See, e.g., Univ. of Houston v. Clark, 38 S.W.3d 578, 583 (Tex.2000) (noting good-faith test considers all circumstances on which official

acted).

[86]

See, e.g., PPG Indus., Inc. v. JMB/Houston Ctrs. Partners Ltd. P'ship, 146 S.W.3d 79, 94 (Tex.2004) (holding no evidence supported jury

verdict applying discovery rule based on contrary evidence that claimant's predecessor knew 3,000 windows had failed).

[87]

See, e.g., Provident Am. Ins. Co. v. Castaneda, 988 S.W.2d 189, 194-95 (Tex. 1998) (finding no evidence insurer denied claim in bad

faith due to conflicting medical evidence).

[88]

See, e.g., State Farm Lloyds v. Nicolau, 951 S.W.2d 444, 448 (Tex. 1997) (holding some evidence showed expert report was pretext and

thus denial of claim had no reasonable basis).

[89]

Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex.2003); Jaffe Aircraft Corp. v. Carr, 867 S.W.2d 27, 28 (Tex. 1993);

McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986); Edrington v. Kiger, 4 Tex. 89, 93(1849).

[90]

McGalliard, 722 S.W.2d at 697; Silcott v. Oglesby, 721 S.W.2d 290, 293 (Tex. 1986); Ford v. Panhandle & Santa Fe Ry. Co., 151 Tex. 538,

252 S.W.2d 561, 563 (1952) (holding it was up to jurors "to resolve conflicts and inconsistencies in the testimony of any one witness as well

as in the testimony of different witnesses"); Houston, E. & W.T. Ry. Co. v. Runnels, 92 Tex. 305, 47 S.W. 971, 972 (1898).

[91]

Turner v. KTRK Television, Inc., 38 S.W.3d 103, 120 (Tex.2000).

[92]

Runnels, 47 S.W. at 972.

[93]

Cochran v. Wool Growers Cent. Storage Co., 140 Tex. 184, 166 S.W.2d 904, 907 (1942) (noting the Court "read the entire statement of

facts").

[94]

Harbin v. Seale, 461 S.W.2d 591, 594 (Tex. 1970); compare Harbin v. Seale, 454 S.W.2d 271, 272 (Tex.Civ.App.-Dallas 1970) (reporting

defendant's testimony that he was traveling only 40 miles per hour), rev'd, 461 S.W.2d 591 (Tex.1970).

[95]

MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 653-54 (Tex. 1999) (holding evidence allowed jurors to disbelieve

defendant's experts' testimony even though plaintiff's expert's testimony was shown to be in error); Runnels, 47 S.W. at 972; Cheatham v.

Riddle, 12 Tex. 112, 118 (1845).

[96]

PPG Indus., Inc. v. JMB/Houston Ctrs. Partners Ltd. P'ship, 146 S.W.3d 79, 100 (Tex. 2004).

[97]

Anchor Cas. Co. v. Bowers, 393 S.W.2d 168, 169-70 (Tex. 1965).

[98]

Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 338 (Tex. 1998); McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986).

[99]

Bentley v. Bunton, 94 S.W.3d 561, 599 (Tex.2002).

[100]

See TexR. Civ. P. 166a(c); Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 817 (Tex. 2002) (finding no evidence that store knew of

puddle based in part on uncontradicted testimony by only employee in the area); In re Doe 4, 19 S.W.3d 322, 325 (Tex.2000); WFAA-TV,

Inc. v. McLemore, 978 S.W.2d 568, 574 (Tex. 1998) (holding reporter's detailed explanation of foundation of report established lack of

malice as matter of law).

[101]

See, e.g., Dresser Indus., Inc. v. Lee, 880 S.W.2d 750, 754 (Tex. 1993); Lyons v. Millers Cas. Ins. Co., 866 S.W.2d 597, 601 (Tex.

1993); Biggers v. Cont'l Bus Sys., Inc., 157 Tex. 351, 303 S.W.2d 359, 365 (1957); Howard Oil Co. v. Davis, 76 Tex. 630, 13 S.W. 665, 667

(1890) (holding reviewing court must uphold jury verdict despite strong evidence to the contrary if evidence is conflicting).

[102]

See, e.g., Gen. Motors Corp. v. Sanchez, 997 S.W.2d 584, 592 (Tex. 1999); Caller-Times Publ'g Co. v. Triad Communications, Inc., 826

S.W.2d 576, 580 (Tex. 1992); Bendalin v. Delgado, 406 S.W.2d 897, 899 (Tex. 1966).

[103]

Formosa Plastics Corp. USA v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41, 48-49 (Tex. 1998).

[104]

Associated Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 286 (Tex. 1998).

[105]

White v. Southwestern Bell Tel. Co., 651 S.W.2d 260, 262-63 (Tex. 1983).

[106]

Hall v. Med. Bldg. of Houston, 151 Tex. 425, 251 S.W.2d 497, 502 (1952).

[107]

St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 542-43 (Tex.2002) (plurality op.).

[108]

T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex. 1992).

[109]

Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 341-42 (Tex. 1998).

[110]

De Winne v. Allen, 154 Tex. 316, 277 S.W.2d95, 98-99(1955).

[111]

Lozano v. Lozano, 52 S.W.3d 141, 144 (Tex.2001) (per curiam); id. at 162-63 (Hecht, J., concurring and dissenting).

[112]

See Tarrant Reg'l Water Dist. v. Gragg, 151 S.W.3d 546, 552 (Tex.2004); Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136

S.W.3d 227, 234 (Tex.2004); Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.2004); Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 922

(Tex. 1998); Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997); Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499

(Tex. 1995); Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex. 1994); Orozco v. Sander, 824 S.W.2d 555, 556 (Tex. 1992); Kindred v.

Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983); Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 297 (Tex. 1983) (per curiam).

[113]

See William Powers, Jr. & Jack Ratliff, Another Look at "No Evidence" & "Insufficient Evidence," 69 Tex. L.R. 515, 517-20 (1991).

[114]

Gragg, 151 S.W.3d at 552; St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 519 (Tex.2002) (plurality op.); Southwestern Bell Mobile Sys., Inc.

v. Franco, 971 S.W.2d 52, 54 (Tex.1998) (per curiam); Formosa Plastics Corp. USA v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41, 48

(Tex.1998); Havner, 953 S.W.2d at 711; Universe Life Ins. Co. v. Giles, 950 S.W.2d 48, 75 (Tex.1997) (Hecht, J., concurring); Preferred

Heating & Air Conditioning Co. v. Shelby, 778 S.W.2d 67, 68 (Tex. 1989) (per curiam); Burk Royalty Co. v. Walls, 616 S.W.2d 911, 922 (Tex.

1981); Harbin v. Seale, 461 S.W.2d 591, 592 (Tex. 1970); W. Tel. Corp. v. McCann, 128 Tex. 582, 99 S.W.2d 895, 898 (Tex.1937).

[115]

See St. Joseph Hosp., 94 S.W.3d at 519-20 (Tex.2002) (plurality op.); Giles, 950 S.W.2d at 51 n. 1 (citing Wininger v. Ft. Worth & D.C.

Ry. Co., 105 Tex. 56, 143 S.W. 1150, 1152 (1912) and Tex. & N.O. Ry. Co. v. Rooks, 293 S.W. 554, 556-57 (Tex.Comm'n.App.1927)).

[116]

Southwestern Bell Tel. Co. v. Garza, 164 S.W.3d 607, 620 (Tex.2004) (citing Choate v. San Antonio & A.P. Ry., 91 Tex. 406, 44 S.W. 69,

69 (1898); Muhle v. N.Y., T. & M. Ry., 86 Tex. 459, 25 S.W. 607, 608 (1894)).

[117]

Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 234 (Tex.2004); Qantel Bus. Sys., Inc. v. Custom Controls Co.,

761 S.W.2d 302, 303 (Tex.1988); Hart v. Van Zandt, 399 S.W.2d 791, 793 (Tex. 1965); Triangle Motors v. Richmond, 152 Tex. 354, 258

S.W.2d 60, 61 (1953); Ford v. Panhandle & Santa Fe Ry. Co., 151 Tex. 538, 252 S.W.2d 561, 562 (1952); Anglin v. Cisco Mortgage Loan

Co., 135 Tex. 188, 141 S.W.2d 935, 938 (1940).

[118]

Bostrom Seating, Inc. v. Crane Carrier Co., 140 S.W.3d 681, 684 (Tex.2004); S.V. v. R.V., 933 S.W.2d 1, 8 (Tex. 1996); Colvin v. Red

Steel Co., 682 S.W.2d 243, 245 (Tex. 1984); White v. Southwestern Bell Tel. Co., 651 S.W.2d 260, 262 (Tex. 1983); Seideneck v. Cal

Bayreuther Assocs., 451 S.W.2d 752, 753 (Tex. 1970); Dunagan v. Bushey, 152 Tex. 630, 263 S.W.2d 148, 153 (1953); FitzGerald v. Hull,

150 Tex. 39, 237 S.W.2d 256, 258 (1951); Kelly v. McKay, 149 Tex. 343, 233 S.W.2d 121, 122 (1950); White v. White, 141 Tex. 328, 172

S.W.2d 295, 296 (1943); McAfee v. Travis Gas Corp., 137 Tex. 314, 153 S.W.2d 442, 445 (1941); Wellington Oil Co. v. Maffi, 136 Tex. 201,

150 S.W.2d 60, 61 (1941); Chicago, R.I. & G. Ry. Co. v. Carter, 261 S.W. 135, 135 (Tex.Com.App.1924, judgm't adopted); Charles v. El Paso

Elec. Ry. Co., 254 S.W. 1094, 1094-95 (Tex.Com.App.1923, holding approved, judgm't adopted).

[119]

Szczepanik v. First S. Trust Co., 883 S.W.2d 648, 649 (Tex. 1994) (per curiam); Vance v. My Apartment Steak House of San Antonio,

Inc., 677 S.W.2d 480, 483 (Tex. 1984); Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 295 (Tex. 1983); Jones v. Tarrant Util. Co., 638

S.W.2d 862, 865 (Tex.1982); Collora v. Navarro, 574 S.W.2d 65, 68 (Tex. 1978); Henderson v. Travelers Ins. Co., 544 S.W.2d 649, 650

(Tex. 1976); Jones v. Nafco Oil & Gas, Inc., 380 S.W.2d 570, 574 (Tex. 1964).

[120]

Act of April 25, 1931, 42d Leg., R.S., ch. 77, § 1, 1931 Tex. Gen. Laws 119; Myers v. Crenshaw, 134 Tex. 500, 137 S.W.2d 7, 13 (Tex.

1940); Hines v. Parks, 128 Tex. 289, 96 S.W.2d 970, 971 (Tex. 1936). Cf Deal v. Craven, 277 S.W. 1046, 1047 (Tex.Com.App.1925, judgm't

adopted) ("It has long been settled in this state that the judgment must follow the verdict, and that the courts are without power to enter a

judgment notwithstanding a verdict upon a material issue.").

[121]

Brown v. Bank of Galveston, Natl Ass'n, 963 S.W.2d 511, 513 (Tex. 1998) ("[W]e consider the evidence in the light most favorable to the

verdict and reasonable inferences that tend to support it."); Trenholm v. Ratcliff, 646 S.W.2d 927, 931 (Tex. 1983) ("In acting on the motion

[for judgment notwithstanding the verdict], all testimony must be viewed in a light most favorable to the party against whom the motion is

sought, and every reasonable intendment deducible from the evidence is to be indulged in that party's favor.") (emphasis added); Dowling

v. NADW Mktg., Inc., 631 S.W.2d 726, 728 (Tex.1982) (same); Douglass v. Panama, Inc., 504 S.W.2d 776, 777 (Tex. 1974) (same); Leyva

v. Pacheco, 163 Tex. 638, 358 S.W.2d 547, 550 (1962) (same); Houston Fire & Cas. Ins. Co. v. Walker, 152 Tex. 503, 260 S.W.2d 600, 603-

04 (1953) (affirming trial court's implied disregard of one jury answer based on "consideration of the transcript as a whole"); Burt v.

Lochausen, 151 Tex. 289, 249 S.W.2d 194, 199 (1952) ("[W]e must consider all the testimony in the record from the standpoint most

favorable to the plaintiff.") (emphasis added); Neyland v. Brown, 141 Tex. 253, 170 S.W.2d 207, 211 (Tex. 1943) (considering judgment non

obstante veredicto "in the light of the record as a whole"); Le Master v. Fort Worth Transit Co., 138 Tex. 512, 160 S.W.2d 224, 225 (1942)

("[W]e must view LeMaster's testimony, as well as all other testimony in the record, from a standpoint most favorable to him.") (emphasis

added); McAfee v. Travis Gas Corp., 137 Tex. 314, 153 S.W.2d 442, 445 (1941) ("[W]e must regard the evidence contained in this record in

its most favorable light for McAfee . . . because of the instructed verdict and judgment non obstante veredicto."); see also Ballantyne v.

Champion Builders, Inc., 144 S.W.3d 417, 424-29 (Tex.2004) (upholding judgment non obstante veredicto based on conclusive evidence

contrary to verdict).

[122]

See Tiller v. McLure, 121 S.W.3d 709, 713 (Tex.2003) (per curiam); Wal-Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 709 (Tex.2003) (per

curiam); Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 227 (Tex. 1990); Best v. Ryan Auto Group, Inc., 786 S.W.2d 670, 671 (Tex. 1990)

(per curiam); Navarette v. Temple Indep. Sch. Dist., 706 S.W.2d 308, 309 (Tex. 1986); Tomlinson v. Jones, 677 S.W.2d 490, 492 (Tex.

1984); Williams v. Bennett, 610 S.W.2d 144, 145 (Tex.1980); Freeman v. Tex. Comp. Ins. Co., 603 S.W.2d 186, 191 (Tex. 1980); Dodd v.

Tex. Farm Prods. Co., 576 S.W.2d 812, 814-15 (Tex.1979); Campbell v. Northwestern Nat'l Life Ins. Co., 573 S.W.2d 496, 497 (Tex. 1978);

Miller v. Bock Laundry Mach. Co., 568 S.W.2d 648, 650 (Tex.1977); Sobel v. Jenkins, 477 S.W.2d 863, 865 (Tex. 1972); C. & R. Transp., Inc.

v. Campbell, 406 S.W.2d 191, 193 (Tex.1966).

[123]

See Tiller, 121 S.W.3d at 713 (citing Bradford v. Vento, 48 S.W.3d 749, 754 (Tex.2001)); Miller, 102 S.W.3d at 709 (same); Best, 786

S.W.2d at 671 (citing King v. Bauer, 688 S.W.2d 845, 846 (Tex. 1985)); Tomlinson, 677 S.W.2d at 492 (citing Glover v. Tex. Gen. Indem.

Co., 619 S.W.2d 400, 401 (Tex. 1981)); Campbell, 573 S.W.2d at 497 (citing Martinez v. Delta Brands, Inc., 515 S.W.2d 263, 265 (Tex.

1974)); Campbell, 406 S.W.2d at 193 (citing Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696, 697-98 (1914)).

[124]

IHS Cedars Treatment Ctr. of Desoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004); Provident Life & Accident Ins. Co. v. Knott,

128 S.W.3d 211, 215-16 (Tex.2003); Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex.2002); Gonzalez v. Mission Am. Ins. Co.,

795 S.W.2d 734, 736 (Tex. 1990); Bayouth v. Lion Oil Co., 671 S.W.2d 867, 868 (Tex. 1984).

[125]

See Tex. R. Civ. P. 166a(i).

[126]

530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).

[127]

Fed.R.Civ.P. 50(a)(1).

[128]

336 U.S. 53, 69 S.Ct. 413, 93 L.Ed. 497 (1949).

[129]

Id. at 57, 69 S.Ct. 413.

[130]

Reeves, 530 U.S. at 149-50, 120 S.Ct. 2097 (citations omitted).

[131]

Carter v. Steverson & Co., 106 S.W.3d 161, 166 (Tex.App.-Houston [1st Dist] 2003, pet. denied) (emphasis added) (citation omitted);

accord Long v. Long, 144 S.W.3d 64, 67 (Tex. App.-El Paso 2004, no pet.); Gore v. Scotland Golf, Inc., 136 S.W.3d 26, 29 (Tex.App.-San

Antonio 2003, pet. denied); Exxon Corp. v. Breezevale Ltd., 82 S.W.3d 429, 438 (Tex.App.-Dallas 2002, pet. denied); N. Am. Van Lines, Inc.

v. Emmons, 50 S.W.3d 103, 113 n. 3 (Tex.App.-Beaumont 2001, pet. denied); Molina v. Moore, 33 S.W.3d 323, 329 (Tex.App.-Amarillo

2000, no pet.); Wal-Mart Stores, Inc. v. Itz, 21 S.W.3d 456, 470 n. 3 (Tex.App.-Austin 2000, pet. denied); see also In re King's Estate, 150

Tex. 662, 244 S.W.2d 660, 661 (1951) (per curiam) (holding court of appeals erred in failing to distinguish between legal and factual

sufficiency review by not weighing all the evidence when conducting the latter).

[132]

Burk Royalty Co. v. Walls, 616 S.W.2d 911, 922 (Tex. 1981) (noting that review of gross negligence finding by considering all the

evidence appeared to but did not conflict with traditional no-evidence test).

[133]

Dorsaneo, supra note 10, at 1503; see also Hardberger, supra note 10, at 17 (arguing exclusive standard is "designed to afford high

deference to jury verdicts").

[134]

State v. Biggar, 873 S.W.2d 11, 13 (Tex. 1994).

[135]

See, e.g., CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 102 (Tex.2000) (noting plaintiff argued defendant's frequent inspections of stairs

showed knowledge of inherent danger, while court held it showed the opposite as inspections found nothing); State Farm Fire & Cas. Co. v.

Simmons, 963 S.W.2d 42, 45 (Tex. 1998) (affirming bad-faith verdict after noting insurer's reasons for denial were contradictory).

[136]

See, e.g., Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 327 (Tex. 1993) (noting evidence of single previous minor stumble

supported negligence finding but not gross negligence).

[137]

See Judith Resnik, Managerial Judges, 96 Harv. L.R. 374, 382-83 (1982) (noting that images of justice appeared blindfolded only within

the last four hundred years).

[138]

Justice Calvert's use of the masculine in 1960 may perhaps be forgiven, for although Hattie Hennenberg, Hortense Ward, and Ruth

Brazzil served temporarily on this Court in 1925, and Sarah T. Hughes was appointed as a state district judge ten years later, it was not until

1954 that the Texas Constitution was amended to allow women to serve as jurors, and not until 1973 that Mary Lou Robinson became the

first women to serve as a state appellate judge. See James T. "Jim" Worthen, The Organizational & Structural Development of Intermediate

Appellate Courts in Texas, 46 S. Tex. L.Rev. 33, 75 (2004); Robert L. Dabney, Jr. We Were There, Houston B.J. Nov.-Dec.1999, at 42, 44.

[139]

Calvert, supra note 12, at 364.

[140]

Wilkerson v. McCarthy, 336 U.S. 53, 65, 69 S.Ct. 413, 93 L.Ed. 497 (1949) (Frankfurter, J., concurring).

[141]

86 S.W.3d 693, 709.

[142]

Id. at 703, 705.

[143]

Id. at 705.

[144]

Id. at 704-05.

[145]

Provident Am. Ins. Co. v. Castañeda, 988 S.W.2d 189, 194-95 (Tex.1998); see also State Farm Lloyds v. Nicolau, 951 S.W.2d 444, 448

(Tex. 1997) (holding reliance on expert report did not foreclose bad-faith claim because claimant "presented evidence from which a fact-

finder could logically infer that Haag's reports were not objectively prepared, that State Farm was aware of Haag's lack of objectivity, and

that State Farm's reliance on the reports was merely pretextual.").

[146]

Cf. Nissan Motor Co. Ltd. v. Armstrong, 145 S.W.3d 131, 140 (Tex.2004) (holding complaint letters may require manufacturer to

investigate, but are not evidence complaints are true).

[147]

Tarrant Reg'l Water Dist. v. Gragg, 151 S.W.3d 546, 555 (Tex.2004) (emphasis added).

Page 18

685 S.W.2d 18 (Tex. 1985)

Mable Jo David HOLICK, Petitioner,

v.

Danny Eugene SMITH Et ux., Respondents.

Nos. C-3261, C-3262 [*].

Supreme Court of Texas.

February 6, 1985

Rehearing Denied March 13, 1985.

Page 19

Thomas T. Tatum, Whitehouse, for petitioner.

Bain, Files, Allen & Caldwell, Jerry Bain, Tyler, for respondents.

SPEARS, Justice.

This case involves the involuntary termination of the parent-child relationship between Mable Jo Holick and two

of her children. Mr. and Mrs. Danny Eugene Smith brought suit for termination and for adoption of the two Holick

children. After a non-jury trial, the court ordered termination of the parent-child relationship and granted the

adoption. The court of appeals, in an unpublished opinion, affirmed. We reverse the judgments of the courts below.

In early March 1982, Ms. Holick left the children with the Smith family. Ms. Holick had been unable to financially

support herself or the children. Although she was able to keep them clothed and fed, they sometimes had no place to

sleep but the car. The children were behind on their immunizations and had head lice when Ms. Holick's niece, Mrs.

Smith, offered to take care of them until Mrs. Holick could get on her feet.

After leaving the children with the Smiths, Ms. Holick went to Dallas with her youngest child to live with her

boyfriend. There, she obtained employment as a waitress. She sent no money to the Smiths, nor did they expect her

to send money for the children's support. She did not visit or write the children for over six months, although she did

call and talk to them once during that period.

The Smiths have two children of their own, are very active in the church, and are able to financially support the

children. The social worker's report concludes that the Smiths are excellent role models, express love for the children,

and appear to want to adopt them.

The issue presented on appeal is whether the Texas Family Code authorizes termination under these

circumstances. We are

Page 20

called upon to construe section 15.02 of the Family Code, which provides in part:

A petition requesting termination of the parent-child relationship with respect to a parent who is not the

petitioner may be granted if the court finds that:

(1) the parent has:

(A) voluntarily left the child alone or in the possession of another not the parent and expressed an intent not to

return; or

(B) voluntarily left the child alone or in the possession of another not the parent without expressing an intent to

return, without providing for the adequate support of the child, and remained away for a period of at least three

months; or

(C) voluntarily left the child alone or in the possession of another without providing adequate support of the

child and remained away for a period of at least six months; or

(D) knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the

physical or emotional well-being of the child; or

(E) 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; or

(F) failed to support the child in accordance with his ability during a period of one year ending within six months

of the date of the filing of the petition;

***

***

and in addition, the court further finds that termination is in the best interest of the child.

Tex.Fam.Code Ann. § 15.02 (Vernon Supp.1984).

The trial court terminated the parent-child relationship based on subsection (1)(C). There are five requirements

for termination under subsection (1)(C):

(1) voluntarily left the child,

(2) alone or in the possession of another,

(3) without providing adequate support of the child,

(4) remained away for at least six months, and

(5) termination is in the best interest of the child.

It is undisputed that Ms. Holick voluntarily placed the children in the possession of the Smiths and that she

remained away for at least six months, even though she had expressed an intent to return for the children. It is

undisputed that Ms. Holick made no support payments but was not expected to by the Smiths, and she did not

contest the trial court's finding that the termination and adoption would be in the best interest of the children. She

contends, however, that she was not required to actually support the children, but only make arrangements for their

adequate support.

The natural right existing between parents and their children is of constitutional dimensions. In re G.M., 596

S.W.2d 846, 846 (Tex.1980); Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex.1976). Indeed, "involuntary termination of

parental rights involves fundamental constitutional rights." In re G.M., 596 S.W.2d at 846. This natural parental right

has been characterized as "essential," "a basic civil right of man," and "far more precious than property rights." See

Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212, 31 L.Ed.2d 551 (1976). A termination decree is complete,

final, irrevocable and divests for all time that natural right as well as all legal rights, privileges, duties and powers

with respect to each other except for the child's right to inherit. Wiley, 543 S.W.2d at 352; Tex.Fam.Code Ann. §

15.07 (Vernon 1975). Moreover, the evidence in support of termination must be clear and convincing before a court

may involuntarily terminate a parent's rights. Santosky v. Kramer, 455 U.S. 745, 747, 102 S.Ct. 1388, 1391, 71

L.Ed.2d 599 (1980); Richardson v. Green, 677 S.W.2d 497, 500 (Tex.1984). Consequently, termination proceedings

should be strictly scrutinized, and involuntary termination statutes are strictly construed in favor of the parent. See

Cawley

Page 21

v. Allums, 518 S.W.2d 790, 792 (Tex.1975); Heard v. Bauman, 443 S.W.2d 715, 719 (Tex.1969).

The Smiths seek a construction of subsection (1)(C) that would require Ms. Holick to have personally sent them

"adequate support" for the children; however, they never expected such support. The Smiths took the children

because Ms. Holick could not adequately support them. The Smiths, nevertheless, argue that the legislature intended

to require parents to personally "provide adequate support" under (1)(C) because (1)(B) contains the language

"provide for the adequate support." In Brokenleg v. Butts, 559 S.W.2d 853 (Tex.Civ.App.--El Paso 1977, writ ref'd

n.r.e.) cert. denied 442 U.S. 946, 99 S.Ct. 2894, 61 L.Ed.2d 318 (1979) the court construed subsection (1)(B), the

three-month provision. The court held that subsection (1)(B) requires the parent to make arrangements for the

adequate support of the child rather than personally send support.

We believe that subsection (1)(C) is capable of two interpretations. "Provide" is defined to mean "to furnish;

supply" or "to fit out with means to an end." Webster's New International Dictionary (2nd ed. 1960). Thus,

subsection (1)(C) is susceptible to an interpretation which would merely require that the parent make arrangements

for adequate support rather than personally support the child.

The Smiths would have us adopt an interpretation which would allow the termination based on whether the

parent is acutely indigent, not whether the parent intended to abandon the child nor whether the parent's conduct

endangers the physical or emotional wellbeing of the child. Under such an interpretation a parent's rights could be

terminated if he placed his child with another who promised to provide support, even though he expressed an intent

to return as soon as he could get back on his feet. His rights could be terminated even if he sent every dime he could

spare for that child's support, if what he sent were not enough to be termed "adequate." With the view that

termination is such a drastic and grave measure that involuntary termination statutes are strictly construed in favor

of the parent, we decline to adopt such an interpretation.

We hold that under § 15.02(1)(C) Ms. Holick was required to make arrangements for the adequate support

rather than personally support the children. Termination was not authorized under these facts. Accordingly, we

reverse the judgments of the courts below and render judgment that the termination is denied and the adoption is

set aside.

Dissenting opinion by WALLACE, J., in which McGEE and KILGARLIN, JJ., join.

WALLACE, Justice, dissenting.

I respectfully dissent. The majority opinion clearly misconstrues both the obvious intent and the plain meaning

of Tex.Fam.Code Ann. § 15.02 (Vernon Supp.1984). It is a rule of statutory construction that every word of a statute

is presumed to have a specific purpose. Likewise, every word excluded from a statute must be presumed to have

been excluded for a particular reason. Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535 (Tex.1981).

We must presume the Legislature intended that termination of the parent-child relationship may be granted

when: (1) the parent leaves the child with one not a parent ... without expressing an intent to return without

providing for the adequate support of the child and remains away three months; or, (2) the parent leaves the child

with a parent, or another ... without providing adequate support of the child and remains away for at least six

months. Tex.Fam.Code Ann. § 15.02(1)(B) and § 15.02(1)(C). The crucial words expressly adopted in the first

instance are, "without expressing an intention to return" and "without providing for" the adequate support of the

child; whereas, in the latter situation the language is "without providing adequate support."

Page 22

In comparing § 15.02(1)(A), (B) and (C), it will be noted that there is no time delay before suit is required if a

parent leaves and expresses an intent not to return. Three months absence is required before termination where the

child is left with someone other than a parent and no provision for support is made. The time period expands to six

months even if the child is left with the other parent and no support is provided. The Tex.Fam.Code coordinates a

progression of conduct with lengthened delays. The omission of "for" from § 15.02(1)(C) was logically intended.

These provisions do not authorize termination only in the case of the acutely indigent. Termination of the

parent-child relationship is authorized in any situation where the parents meet the legislative requirements for

termination through poverty, neglect, abuse or any other condition falling within these sections.

Denying termination in this instance ignores those situations where the best interest of the child is served by

termination of the parent-child relationship. In this case, the trial court found that the best interest of the child would

be served by the stable, loving environment of the Smiths. This finding was not contested by Ms. Holick. While it is

true that the parent-child bond is very strong, it is not true that all parents provide for the best interest of their

children.

A common thread running through the Tex.Fam.Code is protection of the "best interest of the child." The

express language of the provisions regarding termination of the parent-child relationship should be followed when

the trial court finds that to do so would be in the best interest of the child.

Accordingly, I would affirm the judgments of the courts below and render judgment that the termination and

adoption be granted.

McGEE and KILGARLIN, JJ., join in this dissenting opinion.

---------

Notes:

[*]

These are direct companion cases

January 21, 1976

NANCI ADAMS HOLLEY, APPELLANT

v.

DAVID E. ADAMS, APPELLEE

From the District Court of Travis County, 98th Judicial District

COUNSEL

For Appellant: Stephen M. Orr - Austin, TX

For Appellee: Rogan B. Giles - Austin, TX

Author: Shannon

This appeal concerns the termination of a parent-child relationship. Tex. Family Code

Ann. ? 15.02 (1974).

Appellee, David E. Adams, filed suit in the district court of Travis County seeking a

termination of the parent - child relationship between his son, David Christopher

Adams, and appellant, Nanci Holley, the mother of the child and formerly appellee's

wife. After trial to the court, judgment was entered terminating the parent-child

relationship between the boy and appellant. We will affirm that judgment.

Appellee alleged that he and appellant had been married and that during their marriage

a son, David Christopher, was born to them in February of 1966. Appellee and appellant

were divorced by the district court of Travis County in 1969. By the terms of the divorce

decree, appellee was awarded custody of the boy. Appellant was not ordered to pay

child support. Appellee pleaded further that termination of the parent-child relationship

between appellant and her son would be in the best interests of the child. As grounds

for termination, appellee alleged that appellant had failed to support the child in

accordance with her ability during a period of one year ending within six months of the

date of the filing of the suit, and that appellant had "emotionally and actually

abandoned the child."

After judgment and upon request, the court filed findings of fact and conclusions of law.

The findings of fact are summarized as follows. Appellee and appellant lived together as

husband and wife until the spring of 1968 when appellant moved out. Afterward

appellant filed a suit for divorce against appellee, and during the pendency of the

divorce, appellant voluntarily delivered physical custody of David Christopher to

appellee. At that time the child was about three years of age. Appellant did not contest

the judgment awarding custody of the boy to his father. From the time appellant

delivered the child to appellee in early 1969, through the date of appellee's marriage to

his present wife in late 1970, appellee provided all of the shelter, clothing, food, health

care, entertainment, training, education, love, and affection for the child. Following

appellee's present marriage, he and his wife have acted as father and mother to the

child.

Shortly after the divorce was entered, appellant was committed by her mother to the

Austin State Hospital for observation and treatment. She was released from the hospital

after a weekend stay. After her release she departed Austin in the company of three

men with whom she made her way from Texas to the State of Washington.

Appellant married Randie Shreve in Seattle on March 14, 1970, by whom she bore a

child in August of 1970. Appellant divorced Shreve in June of 1973. Appellant married

her present husband, Ricky Holley, in March of 1974.

Before her marriage to Shreve appellant worked as a telephone solicitor to support

herself, receiving the minimum wage. In 1972, appellant obtained employment at the

University of Washington as a program advisor. At the time of trial appellant still held

that position. After her divorce from Shreve, appellant filed proceedings in voluntary

bankruptcy. She was discharged from her debts by the bankruptcy court in September

of 1973. When appellant

This text is long and has been trimmed here. Open the source document for the complete record.