In Re: S.G., P.G., and A. R., Minor Children--Appeal from 267th District Court of Victoria County

NUMBER 13-05-155-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN RE: S.G., P.G., AND A.R., MINOR CHILDREN

On appeal from the 267th District Court

of Victoria County, Texas.

  MEMORANDUM OPINION[1]

Before Justices Ya ez, Castillo, and Garza

Memorandum Opinion by Justice Castillo

A jury rendered a verdict and the trial court entered a judgment that terminated the parental rights of appellants Michelle Ranjel, Manuel Ranjel, Jr., and Neal Griffin to the minor children, S.G., P.G., and A.R.[2] By one issue, the Ranjels charge that opposing counsel's repeated references to uncharged acts of prostitution throughout the trial created a substantial and intolerable risk of erroneous termination of their parental rights. We affirm.

I. BACKGROUND

The jury heard that the Texas Department of Protective and Regulatory Services took possession of the minor children due to neglectful supervision and danger to their physical health and safety. The Ranjels were cocaine users. Mrs. Ranjel used cocaine when she was pregnant with four of her children. The Ranjels used drugs in the back room of the house while the children were asleep. Strangers would come to their house and use drugs while the children were present. Mrs. Ranjel took S.G. and P.G. to a department store where she asked customers for money. When A.R. was born, both Mrs. Ranjel and the baby tested positive for cocaine. The Ranjels rented various places to live and, at one point, lived in motels.

The jury also heard that Mrs. Ranjel was prostituting throughout 2003. She was arrested for criminal trespass in a motel along with a known prostitute, Belinda Stranek. At trial, Mrs. Ranjel denied she engaged in prostitution and denied that Mr. Ranjel ever encouraged her to engage in prostitution. She admitted cocaine use. Documents admitted in evidence show her handwritten statements admitting to using cocaine. From Belinda Stanek, an admitted prostitute, the jury heard that she met Mrs. Ranjel at a local motel and that, since August 2003, Mrs. Ranjel had engaged in prostitution on a weekly basis. The two were arrested at the same motel in November 2003. Stanek explained that motels use the charge of criminal trespass to deter prostitution on their premises. Mr. Ranjel denied knowledge of any prostitution activity involving Mrs. Ranjel. He admitted that on the weekend before trial, he was in Laredo in a motel with Mrs. Ranjel's sister, a known prostitute. He testified that he was there on personal business.

II. UNPRESERVED ERROR

The Ranjels argue that the repeated references to uncharged acts of prostitution constitute fundamental error, requiring reversal of the judgment of termination. The Ranjels failed to make a timely request, objection, or motion before the trial court on these grounds. See Tex. R. App. P. 33.1. Accordingly, we first determine whether our law on preservationBincluding our rules of procedure and our common law doctrine of fundamental errorBpermit review of this complaint. In the Interest of B.L.D., 113 S.W.3d 340, 349 (Tex. 2003).

Requiring parties to raise complaints at trial conserves judicial resources by giving trial courts an opportunity to correct an error before an appeal proceeds. Id. at 350. Additionally, preservation rules promote fairness among litigants. Id. A party "should not be permitted to waive, consent to, or neglect to complain about an error at trial and then surprise his opponent on appeal by stating his complaint for the first time." Id. (citing Pirtle v. Gregory, 629 S.W.2d 919, 920 (Tex. 1982) (per curiam)). Moreover, we further the goal of accuracy in judicial decision making when lower courts have the opportunity to first consider and rule on error. Id. Not only do the parties have the opportunity to develop and refine their arguments, but we have the benefit of other judicial review to focus and further analyze the questions at issue. Id. Accordingly, we follow our procedural rules, which bar review of this complaint, unless a recognized exception exists. Id.

A limited exception to our procedural preservation rules is the fundamental error doctrine. B.L.D., 113 S.W.3d at 349 (citing Ramsey v. Dunlop, 205 S.W.2d 979, 982 83 (Tex. 1947)). Historically, the term "fundamental error" is used to describe situations in which an appellate court may review error that was neither raised in the trial court nor assigned on appeal. See id. (citing McCauley v. Consol. Underwriters, 304 S.W.2d 265, 266 (Tex. 1957) (per curiam)). In light of the strong policy considerations favoring preservation, the Supreme Court has called fundamental error "a discredited doctrine." B.L.D., 113 S.W.3d at 349 (citing Cox v. Johnson, 638 S.W.2d 867, 868 (Tex. 1982) (per curiam)). Accordingly, because termination cases do not apply criminal procedural or evidentiary rules (that are only applicable to criminal cases), they do not necessarily incorporate the concomitant criminal fundamental error doctrine. B.L.D., 113 S.W.3d at 351. Because the Ranjels did not present their current complaint to the trial court, they did not preserve error for our review. See id.

Nevertheless, even if the Ranjels had properly objected and preserved the error, the error was not harmful and thus would not be reversible error. Id. Ordinarily, we review a trial court's rulings on admitting or excluding evidence under an abuse of discretion standard. Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 906 (Tex. 2000); Owens Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). We may reverse a trial court's judgment based on an error in the admission or exclusion of evidence only if we conclude that (1) the trial court did in fact commit error and (2) the error was reasonably calculated to cause and probably did cause the rendition of an improper judgment. See Tex. R. App. P. 44.1(a); Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989); Capital Metro. Transp. Auth. v. Central of Tennessee Ry. and Navigation Co., Inc., 114 S.W.3d 573, 583 (Tex. App.BAustin 2003, pet. denied).

In cases where the complained-of error involves an evidentiary ruling, the reviewing court examines the whole record to determine if the complaining party was harmed by the erroneous admission or exclusion. In the Interest of M.S., 115 S.W.3d 534, 538 39 (Tex. 2003). Thus, it was the Ranjels' burden to show that they were prejudiced by the admitted evidence. See id. Accordingly, we need not decide whether the trial court erred in admitting the testimony regarding prostitution because the evidence was merely cumulative of other evidence admitted before the jury as grounds for termination. The erroneous admission of evidence that is merely cumulative of properly admitted testimony is harmless error. Gee, 765 S.W.2d at 396; McInnes v. Yamaha Motor Corp. U.S.A., 673 S.W.2d 185, 188 (Tex.1984), cert. denied, 469 U.S. 1107 (1985).

III. CONCLUSION

We overrule the sole issue presented. We affirm the trial court judgment terminating the parent-child relationship.

ERRLINDA CASTILLO

Justice

Memorandum Opinion delivered and filed

this the 4th day of August, 2005.

[1] See Tex. R. App. P. 47.2, 47.4.

[2] Neal Griffin did not appeal. He was sued as the biological father of S.G. and P.G. Mr. Ranjel was sued as the putative father of A.R. See Tex. Fam. Code Ann. _ 160.204(a)(1) (Vernon 2004-05) ("A man is presumed to be the father of a child if he is married to the mother of the child and the child is born during the marriage."). Mr. Ranjel admitted that DNA testing eliminated him as the biological father of A.R.