Opinions Released August 31, 2017

In the Interest of R.G.B., No. 13-17-00187-CV (Memorandum Opinion by Justice Contreras; Panel Members: Justices Benavides and Rodriguez)

In this accelerated appeal from a judgment terminating the appellant’s parental rights, the Thirteenth Court of Appeals discussed the propriety and effect of the broad-form submission of the grounds for termination.

D.B. moved with her three children from Arkansas to Texas in January 2015 to live with her sister and brother-in-law. At the time, D.B. was on probation for several felony offenses in Arkansas and was not allowed to leave the state. Furthermore, D.B. was using meth while on probation, as were her sister and brother-in-law.

After moving to Texas, D.B. learned that she was pregnant with her fourth child: R.G.B. Nonetheless, D.B. continued using meth during her pregnancy.

In September, D.B.’s three children moved back to Arkansas with D.B.’s mother-in-law. D.B. tested positive for meth twice in October, then gave birth to R.G.B. in November. When R.G.B. was born, his meconium tested positive for meth. R.G.B. was removed from the home by the Department of Family and Protective Services.

D.B. was then arrested for outstanding warrants. The Department established a family service plan that required D.B. to stop using drugs to regain custody of R.G.B. D.B. did not cooperate with the Department. She was offered drug tests fifteen times, but appeared for only seven tests and tested positive three times. D.B. also arrived at a scheduled visitation with R.G.B. while still high on meth.

The Department petitioned to terminate D.B.’s parental rights, and the case was tried to a jury. In the jury charge, the court instructed the jury that D.B.’s parental rights could be terminated only if it was proven by clear and convincing evidence that at least one of four different grounds for termination occurred: (1) D.B. knowingly endangered or allowed the child to remain in conditions that endangered the physical or emotional well-being of the child; (2) D.B. knowingly engaged in conduct or allowed the child to be with persons who endangered the physical or emotional well-being of the child; (3) D.B. constructively abandoned the child with the Department for not less than six months without maintaining significant contact with the child or demonstrating an ability to provide a safe environment; or (4) D.B. failed to comply with the court order providing for the conditions for the return of the child for not less than nine months. The court further instructed the jury that the termination must be in the child’s best interest, and defined the relevant standards. The jury was then asked in a single broad-form question, “Should the parent-child relationship between [D.B.] and the child, [R.G.B.] be terminated?” The jury answered “yes.”

The court entered final judgment terminating D.B.’s parental rights, and holding that the jury found by clear and convincing evidence that each of the four grounds for termination existed. D.B. appealed.

Held: The broad-form submission did not violate D.B.’s due process rights, although the judgment should have reflected that the jury found one of the four grounds rather than all of the grounds. With this modification to the judgment—changing “and” to “or”—the judgment was affirmed.

D.B. argued on appeal that, (1) the broad-form submission violated her due process rights by listing multiple grounds for termination in a single question; and (2) the judgment violated her due process rights by stating that all four grounds for termination had been found.

Jury Form

First, D.B. argued that the jury form violated her right to due process by submitting all four potential grounds for termination under Texas Family Code Sections 161.001(b)(1)(D), (E), (N), and (O) with a single broad-form question. The Thirteenth Court first noted that D.B. did not object to the broad-form question. However, assuming without deciding that the issue was not waived, the Texas Supreme Court has held that a parent’s due process rights are not violated by the use of a single broad-form jury question to submit multiple grounds for termination. The Texas Supreme Court reasoned that the determinative question was whether the parent’s rights should be terminated; not the specific grounds for termination or the specific way in which the parent endangered the child. The Thirteenth Court was bound to follow this precedent.


D.B. next argued that the judgment violated her due process rights by reciting all four grounds for termination when the jury could have found only one of the four grounds. D.B. claimed that the broad-form verdict conflicted with Texas Rule of Civil Procedure 306, which requires the judgment in a termination case to state the specific grounds for termination, and Rule 301 which requires the trial court’s judgment to conform to the verdict. Moreover, since the judgment stated that the jury found all  four grounds, and Texas Family Code Section 161.001(b)(1)(M) provides for termination of a parent’s parental rights if the parent has had her rights terminated to another child under subsections (D) or (E), the judgment could potentially be used to terminate D.B.’s rights to her other children—even though it was not clear that the jury actually found grounds for termination under subsections (D) or (E).

While the Thirteenth Court did not agree that the broad-form submission conflicted with the Rules of Civil Procedure, it agreed that the judgment should not have stated that the jury found all four grounds for termination. Since the jury only needed to find one ground for termination to warrant its verdict, the judgment should have listed the four alleged grounds using the disjunctive “or” rather than the conjunctive “and.” The judgment was thus modified to change “and” to “or,” and could not be used to terminate D.B.’s rights to her other children under Section 161.001(b)(1)(M).

As modified, the judgment was affirmed.

Read the Full Opinion Here

State v. Cecilia Pardo, No. 13-16-00224-CR (Memorandum Opinion by Justice Contreras; Panel Members: Justices Rodriguez and Benavides)

In this appeal from an order granting the defendant a new trial, the Thirteenth Court of Appeals examined the mens rea required to support a conviction for the crime of selling alcohol to a minor.

Cecilia Pardo worked part-time in a Wingstop in Port Isabel, Texas, and sold a beer to a minor working undercover for the Texas Alcohol and Beverage Commission, even after the minor showed Pardo his driver’s license reflecting that he was underage. Pardo was charged with the class A misdemeanor of selling alcohol to a minor. Pardo pleaded not guilty, and the case was tried to the court. Pardo testified at trial that she had only worked at Wingstop for six months at the time of the incident; that she had not received any training on the sale of alcohol; that she was the only cashier working that day; and that she mistakenly calculated the undercover agent’s age from his driver’s license. Pardo’s counsel argued that the State did not show that Pardo was criminally negligent, and that Pardo had a valid entrapment defense. The trial court found Pardo guilty, and assessed court costs as punishment.

Pardo filed a motion for new trial contending that, (1) she was entrapped; (2) her counsel was ineffective for failing to adequately explain the consequences of waiving her right to a jury trial; and (3) there was insufficient evidence of criminal negligence. The trial court granted the motion, and entered findings of fact and conclusions of law. The State appealed.

Held: The trial court did not abuse its discretion by granting a new trial because there was legally insufficient evidence of criminal negligence.

A trial court abuses its discretion by granting a new trial for a non-legal or legally invalid reason. Here, the trial court held that (1) after further reviewing the case law, the defendant was entrapped; (2) the defendant’s counsel was ineffective by failing to properly advise her regarding the consequences of waiving a jury trial; and (3) the evidence was insufficient to establish criminal negligence. The Thirteenth Court began analyzed only the sufficiency of the evidence to establish criminal negligence.

A person acts with criminal negligence if she ought to be aware of a substantial and unjustifiable risk that the circumstances surrounding or resulting from her conduct will occur. The Court of Criminal Appeals has clarified that criminal negligence requires “an extreme degree of risk” based on the conduct itself, rather than the resulting harm. Moreover, the State must prove that the actor failed to perceive the risk at all.

Here, Pardo examined the driver’s license but miscalculated the minor’s age. This showed that Pardo did perceive the risk that a minor would purchase alcohol. Thus, the Thirteenth Court of Appeals held that Pardo’s conduct was a mistake or accident; not the result of criminal negligence. The trial court did not abuse its discretion in granting Pardo a new trial on this basis. The trial court’s judgment granting a new trial was affirmed.

Read the Full Opinion Here