Thomas Retzlaff v. Texas Department of Protective and Regulatory Services

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-98-00201-CV Thomas Retzlaff, Appellant v. Texas Department of Protective and Regulatory Services, Appellee FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT NO. 163,613-B, HONORABLE RICK MORRIS, JUDGE PRESIDING This case involves the involuntary termination of the parent-child relationship between appellant Thomas Retzlaff and his two children. Following a jury trial, the jury returned a verdict in favor of termination and the trial court ordered the termination of the parent-child relationship between Retzlaff and the children. In seven points of error, Retzlaff asserts that the trial court made several erroneous evidentiary rulings and violated his constitutional rights; he also challenges the legal and factual sufficiency of the evidence supporting termination. We will affirm the trial court's decree ordering termination of the parent-child relationship between Retzlaff and his two children. BACKGROUND This cause was originally brought as a divorce proceeding between Retzlaff and his wife, Denise Retzlaff, on March 11, 1997. On March 19, appellee the Texas Department of Protective and Regulatory Services (the "Department") filed its original petition in suit affecting parent-child relationship for protection of the Retzlaffs' two children, who were then nine and seven. The two suits were consolidated on September 3, 1997. On October 2, 1997, the Department filed a petition for intervention seeking to terminate Thomas Retzlaff's parental rights and to appoint Denise Retzlaff as Managing Conservator of the two children. The Department sought termination under chapter 161 of the Texas Family Code on the grounds that Retzlaff (1) knowingly placed or allowed the children to remain in conditions or surroundings which endangers their physical or emotional well-being, (2) engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangers their physical or emotional well-being, (3) failed to support the children 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 (4) continuously refused to submit to a reasonable and lawful order of a court under section 261.301 of the Family Code. The termination proceedings were tried before a jury on January 12, 1998. The jury returned a unanimous verdict on January 16 on the grounds that Retzlaff had committed at least one of the grounds of involuntary termination under section 161.001 of the Family Code, and that it was in the best interest of the children that the parent-child relationship between Retzlaff and his children be terminated. A decree of termination was signed by the trial court on January 22, 1998. On that same date, the court severed the Department's action seeking termination from the remainder of the divorce proceedings. Retzlaff now appeals the trial court's decree of termination. DISCUSSION Admission of Videotape and Photographs In point of error one, Retzlaff contends that the trial court abused its discretion in admitting a video tape depicting him brutally sodomizing his wife in the living room while their children were in adjacent bedrooms, and in admitting photographs of other sexually explicit materials found in Retzlaff's home. Retzlaff argues that the video tape is not a true and complete depiction of the event as it took place because it was edited from two hours to fifteen minutes to emphasize his harsh behavior. Showing this edited tape to the jury, he asserts, so prejudiced the jury against him that he could not receive a fair trial. In addition, Retzlaff contends that the pornographic magazines found in his home were photographed in a prejudicial manner. Specifically, he asserts that the photographs show magazines that were spread on the floor, which is not the manner in which they were found. Texas Rule of Evidence 403 provides that "evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." Tex. R. Evid. 403. The Department argues that Retzlaff failed to preserve error by failing to renew his Rule 403 objection when the video tape was offered into evidence and by failing to make a Rule 403 objection when the photographs of pornographic materials were offered into evidence. After careful review of the record, we conclude that Retzlaff did renew his Rule 403 objection when the video tape was offered into evidence, but he failed to raise a Rule 403 objection based on unfair prejudice at the time the photographs were offered into evidence. Therefore, Retzlaff has waived error on appeal as to the photographs only. Video tapes are considered photographs for purposes of the evidentiary rules. See Kephart v. State, 875 S.W.2d 319, 321 (Tex. Crim. App. 1994). "When a photograph is a proper representation of an important fact issue, the admission or rejection of it is a matter which rests largely within the discretion of the trial judge, and that decision will not be disturbed on appeal unless an abuse of discretion is shown." Fibreboard Corp. v. Pool, 813 S.W.2d 658, 671 (Tex. App.--Texarkana 1991, writ denied) (citing Richardson v. Missouri-K.-T.R. Co. of Texas, 205 S.W.2d 819, 824 (Tex. Civ. App.--Fort Worth 1947, writ dism'd)). Because the scene depicted on the tape is the consensual act of a married couple, Retzlaff argues, it has no probative value. Further, he claims, the way in which it is edited is extremely prejudicial because it places him in the worst possible light. We disagree. The video tape has probative value in that it shows the children's exposure to Retzlaff's inappropriate sexual behavior. Other evidence presented at trial proves that at the time the tape was made, the children were in adjacent bedrooms and could have entered the living room while the video was being made. Such evidence directly relates to the issue of Retzlaff's knowing placement of his children in circumstances or surroundings which endangered their physical or emotional well-being. Even if we assume that the editing of the tape rendered it prejudicial, we conclude that the risk of unfair prejudice does not substantially outweigh the probative value of the evidence depicted on the tape. The video tape evidence is cumulative of other evidence that was admitted at trial, including the testimony of both Denise Retzlaff and of one of the children. Further, Retzlaff could have cured any error by offering the unedited version of the video tape into evidence or by testifying as to what really took place. Retzlaff's first point of error is overruled. Admission of Expert Testimony In his second, third, and fifth points of error, Retzlaff challenges the admission of the expert testimony of Dr. Frank Pugliese. He contends that the trial court abused its discretion in (1) allowing the speculative testimony of Dr. Pugliese that was not properly disclosed prior to trial, (2) failing to appoint an independent expert to review Dr. Pugliese's testimony, and (3) failing to grant a mistrial. First, Retzlaff argues that Dr. Pugliese's testimony should have been excluded under the Texas Rules of Civil Procedure because the Department failed to supplement its discovery responses to include the subject matter of Retzlaff's alleged pedophilic tendencies. Rule 166b of the Texas Rules of Civil Procedure, in effect at the time of the trial in this case, provides in pertinent part: A party may obtain discovery of the identity and location . . . of an expert who may be called as an expert witness, the subject matter on which the witness is expected to testify, the mental impressions and opinions held by the expert and the facts known to the expert . . . which relate to or form the basis of the mental impressions and opinions held by the expert. Tex. R. Civ. P. 166b(2)(e)(1) (since repealed). Under Texas Rule of Civil Procedure 215, "[a] party who fails to respond to or supplement his response to a request for discovery shall not be entitled to present evidence which the party was under a duty to provide in a response or supplemental response." Tex. R. Civ. P. 215(5) (since amended). Retzlaff filed a "Second Motion to Compel Production of Documents and Motion for Sanctions under rule 215 TRCP" on August 12, 1997. However, he failed to obtain a ruling from the trial court on his motion before trial. "[F]ailure to obtain a pretrial ruling on discovery disputes that exist before commencement of trial constitutes a waiver of any claim for sanctions based on that conduct." Remington Arms Co., Inc. v. Caldwell, 850 S.W.2d 167, 170 (Tex. 1993). Even assuming Retzlaff did not waive his claim for sanctions, we conclude that the Department adequately informed Retzlaff regarding the subject matter of Dr. Pugliese's testimony. In response to Retzlaff's discovery requests, the Department listed the subject matter of Dr. Pugliese's testimony as "Thomas C. Retzlaff's psychological examination, mental state, and suitability as a father," and the "[p]sychological and mental status of Respondent." His evaluation of Retzlaff, which was admitted by the trial court without objection, discussed Retzlaff's pedophilic tendencies. Therefore, the Department sufficiently notified Retzlaff that Dr. Pugliese's testimony would address such pedophilic tendencies. Retzlaff also argues that Dr. Pugliese's testimony is speculative. In Daubert v. Merrell Dow Pharmaceuticals, Inc., the United States Supreme Court considered "the standard for admitting expert scientific testimony in a federal trial." 509 U.S. 579 (1993). Daubert's focus is on the trial court's discretion, when faced with an objection to scientific evidence, to admit or exclude such evidence before or during the trial. The Supreme Court added that when the trial court concludes that the disputed scientific evidence is insufficient to go to the jury, the trial court may grant a summary judgment or a directed verdict. Id. at 595. However, Daubert does not support the proposition that a reviewing court can in effect exclude expert testimony that was not objected to based on its scientific reliability before trial or when it was offered at trial and then render judgment against the offering party. The Texas Supreme Court too has recently held that if a party wants to object to expert testimony on Daubert grounds, the party has to make that objection either pretrial or at least when the testimony is offered at trial and not later. See Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 409 (Tex. 1998). In this case, Retzlaff did not object to the reliability of Dr. Pugliese's testimony prior to the Department's offer at trial. Accordingly, his claim of error is waived. Next, Retzlaff argues that the trial court erred (1) in refusing to grant his request for an independent expert to review Dr. Pugliese's testimony or to allow Retzlaff additional time to review Dr. Pugliese's testimony and (2) in denying his motion for mistrial. We review the trial court's denial of a mistrial for an abuse of discretion. See Pitman v. Lightfoot, 937 S.W.2d 496, 537 (Tex. App.--San Antonio 1996, writ denied). In addition to showing an abuse of discretion, the appellant must also show that the trial court's error was reasonably calculated to cause and probably did cause rendition of an improper judgment in the case. See id. Having determined that the issue of Retzlaff's pedophilic tendencies were properly raised before trial and that Retzlaff failed to properly object to the reliability of Dr. Pugliese's testimony, we conclude that the trial court properly denied Retzlaff's motion for another court appointed expert, for additional time to review Dr. Pugliese's testimony, and for mistrial. Points of error two, three, and five are therefore overruled. Limiting Voir Dire In point of error four, Retzlaff contends that the trial court erred in limiting his voir dire examination of potential jurors. The trial court instructed the parties that they would have thirty minutes each for voir dire. Retzlaff's counsel was warned by the court when he had five minutes left and when time was up. Retzlaff's counsel objected, indicating that he had additional questions. The trial court overruled the objection, and Retzlaff's counsel presented a bill of review listing the questions he would have asked specific venire persons. On appeal, Retzlaff argues that the trial court abused its discretion in overruling his objection because his questions were proper and material to the case. Trial courts have great discretion in conducting voir dire. See Babcock v. Northwest Memorial Hosp., 767 S.W.2d 705, 707 (Tex. 1989); Zeh v. Singleton, 650 S.W.2d 518, 519 (Tex. App.--Houston [14th Dist.] 1983, no writ); Texas Employers Ins. Ass'n v. Loesch, 538 S.W.2d 435, 440 (Tex. Civ. App.--Waco 1976, writ ref'd n.r.e.)). Appellate courts will not disturb a decision by the trial court to limit voir dire absent a clear abuse of discretion. Gulf States Utilities Co. v. Reed, 659 S.W.2d 849, 855 (Tex.App.--Houston [14th Dist.] 1983, writ ref'd n.r.e.). To establish an abuse of discretion, a party must establish that under the circumstances of the case the facts and law permit the trial court to make but one decision. See Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985). The trial court notified both parties well before trial that there would be a time limitation on voir dire. The record reveals that, knowing he was limited to thirty minutes, Retzlaff's counsel spent a significant amount of time lecturing the venire on the similarities between child custody cases and political campaigns. Without challenging any member of the venire for cause, the record clearly shows that many of Retzlaff's counsel's questions, including those he had time to ask and those he listed in his bill of review, were directed to potential jurors outside the "strike zone." (1) His decision to spend much of his allotted thirty minutes questioning potential jurors outside the strike zone and lecturing on political campaigns significantly affected his ability to ask relevant questions of those jurors who actually served on the jury. While some of the questions Retzlaff listed in his bill of review may have been proper, relevant, and not unnecessarily repetitious, his counsel's attempts to prolong voir dire by asking irrelevant questions to many venire persons outside the strike zone show a less than judicious use of the time allotted him by the trial court. We in our discretion may have allowed Retzlaff's counsel to further question the venire panel. Nevertheless, we may not find an abuse of discretion merely because the trial court decided the issue differently than we would. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985), cert. denied, 476 U.S. 1159 (1986). The trial court did not abuse its discretion. Retzlaff's fourth point of error is overruled. Sufficiency of the Evidence In point of error six, Retzlaff complains that the evidence is legally and factually insufficient to support the jury's finding that he engaged in conduct which endangered his children. Specifically, Retzlaff argues that there was no evidence that he intentionally exposed the children to sexually explicit material. Because no such evidence exists, Retzlaff asserts, termination of his parental rights is not in the best interest of the children. When both legal and factual sufficiency challenges are raised, we must first examine the legal sufficiency of the evidence. D.O. v. Texas Dep't of Human Servs., 851 S.W.2d 351, 353 (Tex. App.--Austin 1993, no writ) (citing Glover v. Texas Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex. 1981)). In deciding a legal sufficiency challenge, we consider only the evidence and inferences tending to support the finding and disregard all evidence to the contrary. See id. (citing Alm v. Aluminum Co. of Am., 717 S.W.2d 588, 593 (Tex. 1986)); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965); In re S.H.A., 728 S.W.2d 73, 90 (Tex. App.--Dallas 1987, no writ). To review the factual sufficiency of the evidence, we consider and weigh all of the evidence and will set aside the findings only if the evidence is so weak or the evidence to the contrary is so overwhelming as to make it clearly wrong and unjust. See D.O., 851 S.W.2d at 353 (citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986)). The clear and convincing standard of proof required to terminate parental rights does not alter the appropriate appellate standard of review. See State v. Turner, 556 S.W.2d 563, 565 (Tex. 1977); D.O., 851 S.W.2d at 353. A court may terminate a parent-child relationship if it finds that (1) the parent has engaged in any of the specific conduct listed in the Texas Family Code as grounds for termination, and (2) the termination is in the best interest of the child. See Tex. Fam. Code Ann. § 161.001(1), (2) (West Supp. 1999); see also D.O., 851 S.W.2d at 352 (citing Texas Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987)). In this case, the jury was charged with terminating Retzlaff's parental rights on the grounds under subsections (1)(D) or (1)(E) of section 161.001 of the Family Code, which provide for termination if the parent has: (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; (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. Tex. Fam. Code Ann. § 161.001(1)(D), (E). "Subsections (D) and (E) differ in one respect: the source of the physical or emotional endangerment to the child." See In the Interest of B.S.T., 977 S.W.2d 481, 484 (Tex. App.--Houston [14th Dist.] 1998, no pet.) (citing In the Interest of S.H.A., 728 S.W.2d 73, 83-84 (Tex. App.--Dallas 1987, writ ref'd n.r.e.)). Under subsection (D) the environment must be the source of endangerment to the child. See B.S.T., 977 S.W.2d at 484; S.H.A., 728 S.W.2d at 84. Under subsection (E), the cause of the danger to the child must be the parent's conduct alone, including the parents actions or omissions or failures to act. B.S.T., 977 S.W.2d at 484; S.H.A., 728 S.W.2d at 83-84. Both subsections require knowledge on the part of the parent. The termination must also be in the best interest of the child. Tex. Fam. Code Ann. § 161.001(2). Factors to be considered in making the determination whether termination is in the best interest of the child include: the desires of the child, the emotional and physical needs of the child now and in the future; the emotional and physical danger to the child now and in the future; parenting abilities, acts or omissions indicating the existing parent-child relationship is not a proper one; and any excuse for the acts or omissions. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). Therefore, to affirm on appeal, we must hold that the Department produced sufficient evidence that Retzlaff engaged in conduct described in subsection (1)(D) or (1)(E) and that termination is in the best interest of the children. If we determine the jury's verdict was proper under either subsection, we need not reach the other subsection. See Avery v. State, 963 S.W.2d 550, 552 (Tex. App.--Houston [1st Dist.] 1997, no writ). Here, the evidence shows that Retzlaff repeatedly exposed his two children, under the age of ten, to circumstances or surroundings that endangered their physical and emotional well-being. Retzlaff testified that he left the children alone in the house, that he kept a loaded gun in the house, that he kept pornographic materials in areas of the house that were accessible to the children, and that he participated in sexual acts near the children on more than one occasion. Denise Retzlaff testified that Retzlaff began leaving the children alone in the house when the eldest was three weeks old, that he kept pornographic magazines under the master bed and on the night stand, that he masturbated with the aid of pornographic materials, and that she discovered one of the children imitating Retzlaff's behavior in front of the pornographic materials at the age of six. Both children told Dr. Pugliese, the Department's expert, that they witnessed Retzlaff masturbating and/or watching pornographic movies on the television. One child stated that he occasionally looked through some of the pornographic magazines and watched X-rated movies from his bedroom while Retzlaff was masturbating. He also told a school counselor that Retzlaff would touch his sister's older friends in their private places. Both children expressed dislike towards Retzlaff, and one told Dr. Pugliese that she felt uncomfortable around Retzlaff and had no interest in living with him. After careful review of the record, we are persuaded that clear and convincing evidence exists that is both legally and factually sufficient to support the trial court's finding that Retzlaff knowingly placed or knowingly allowed his two children to remain in conditions or surroundings which endanger their physical or emotional well-being and that termination is in the best interest of the children. Because we have concluded that sufficient evidence exists to support termination under subsection (1)(D), we need not address Retzlaff's challenge to the remaining subsection (1)(E). See Avery, 963 S.W.2d at 552. Constitutional Violations In his seventh point of error, Retzlaff contends that the termination of his parental rights is unconstitutional because the record contains no evidence that the Department made an attempt to preserve the parent-child relationship between himself and his two children and that he was not provided court-appointed counsel until four months before trial. [S]everance of the parent-child relationship will survive constitutional scrutiny only if: the asserted governmental interest is compelling; a particularized showing is made that the state interest is promoted by terminating the relationship; it is impossible to achieve the goal through any less restrictive means; and procedural due process protections are met. S.H.A., 728 S.W.2d at 91. Our review of the record reveals that each of these constitutional requirements were met. Retzlaff was appointed an attorney as soon as he made the request, which was shortly after the Department sought termination and four months before trial. An attorney ad litem and a guardian ad litem were appointed to represent the children's interests. Further, Retzlaff was afforded a jury trial and representation on appeal. Therefore, we conclude that Retzlaff's procedural due process rights were protected. The governmental interest in protecting the emotional and physical well-being of the children is compelling. Several witnesses testified that termination was the only means of protecting the children's well-being. The record shows that the Department did attempt to save the family unit by offering counseling and other services to Retzlaff, all of which he refused. The Department has sought to maintain stability in the children's lives by terminating only the father's parental rights. The Department intends to return the children to a permanent home with their mother. Accordingly, we hold that the constitutional safeguards have been met. CONCLUSION Having overruled all seven of Retzlaff's points of error, (2) we affirm the trial court's decree terminating the parent-child relationship between Retzlaff and his two children. Bea Ann Smith, Justice Before Justices Jones, B. A. Smith and Yeakel Affirmed Filed: July 29, 1999 Do Not Publish 1. When no challenges have been made, any venire person outside number twenty-four is considered outside the strike zone. 2. Retzlaff filed a pro se brief and second supplementary pro se brief raising eleven issues after his attorney filed a brief on the merits. An appellant has a right to file a pro se brief in addition to counsel's brief only when counsel has presented a frivolous appeal brief. See Anders v. California, 386 U.S. 738 (1967); Ford v. State, 794 S.W.2d 863, 868 (Tex. App.--El Paso 1990, pet. ref'd). Nonetheless, we have reviewed the complaints presented in the pro se brief and find them to be without merit. The contentions raised in issues one through ten of Retzlaff's pro se brief are overruled. e occasionally looked through some of the pornographic magazines and watched X-rated movies from his bedroom while Retzlaff was masturbating. He also told a school counselor that Retzlaff would touch his sister's older friends in their private places. Both children expressed dislike towards Retzlaff, and one told Dr. Pugliese that she felt uncomfortable around Retzlaff and had no interest in living with him. After careful review of the record, we are persuaded that clear and convincing evidence exists that is both legally and factually sufficient to support the trial court's finding that Retzlaff knowingly placed or knowingly allowed his two children to remain in conditions or surroundings which endanger their physical or emotional well-being and that termination is in the best interest of the children. Because we have concluded that sufficient evidence exists to support termination under subsection (1)(D), we need not address Retzlaff's challenge to the remaining subsection (1)(E). See Avery, 963 S.W.2d at 552. Constitutional Violations In his seventh point of error, Retzlaff contends that the termination of his parental rights is unconstitutional because the record contains no evidence that the Department made an attempt to preserve the parent-child relationship between himself and his two children and that he was not provided court-appointed counsel until four months before trial. [S]everance of the parent-child relationship will survive constitutional scrutiny only if: the asserted governmental interest is compelling; a pa