Opinion
No. 06-16-00063-CV
02-15-2017
IN THE INTEREST OF H.A.C., A CHILD
On Appeal from the 336th District Court Fannin County, Texas
Trial Court No. FA-15-42340 Before Morriss, C.J., Moseley and Burgess, JJ.
MEMORANDUM OPINION
H.A.C.'s father (Father) was representing himself against the petition of the Texas Department of Family and Protective Services (Department) seeking to terminate his parental rights to H.A.C. Because the Department's expert witness Purvi Patel, a psychologist, had scheduling issues, the Department was allowed to bring Patel to the witness stand out of order, in the midst of Father's testimony. After Father's parental rights were terminated, he appeals, claiming that allowing Patel's testimony was error, because she had not been previously disclosed by the Department. We affirm the judgment of the trial court because, although (1) Father's appellate issue was preserved for our review, (2) allowing Patel's testimony was not an abuse of discretion.
To protect the privacy of the child, we do not include the names of the child or family in this opinion. See TEX. R. APP. P. 9.8.
(1) Father's Issue Was Preserved for Our Review
The Department argues that Father's point of error is not preserved for our review. Because that issue is "a systemic requirement," we must first address that contention. Ford v. State, 305 S.W.3d 530, 532-33 (Tex. Crim. App. 2009); In the Interest of E.R.C., 496 S.W.3d 270, 277 (Tex. App.—Texarkana 2016, pet. denied).
When Patel was called to testify, Father initially objected that her name was not included on the Department's expert witness list. The Department (1) argued that Patel was the doctor that performed the psychological evaluation of Father at the Department's request, (2) stated, "this information was provided to the parties," and (3) added to the trial court, "I believe we gave notice in the discovery that was sent over." Father then stated that his "objection is not to her," prompting the Department to seek clarification on his objection. Father clarified that he wanted Patel to testify, adding that he wants "all of the truth." The court sought confirmation that Father was not objecting to Patel's testimony, just the timing of it. Father responded, "No, I would never object to a witness taking the stand." After further clarification that Father was objecting to only the timing of Patel's testimony, the trial court overruled Father's request that he be allowed to finish his testimony before Patel was called to the stand. In other words, because Father was not asking the court to disallow Patel's testimony, but just to delay it, the trial court made no ruling on the issue before Patel took the witness stand in front of the jury. Thus, the Department argues that error is not preserved.
However, after Patel explained her qualifications and testified that she conducted a psychological examination of Father, Father lodged another objection before Patel had the opportunity to divulge the results of the examination. Specifically, the trial court overruled an objection to "with[hold] completely" Patel's testimony because "she wasn't on the role today to be a witness." The Department argues that this objection was untimely, relying on Clark v. Trailways, Inc., which requires a party opposing admission of evidence on the grounds of a failure to supplement discovery responses to object "when the testimony or evidence is offered at trial." Clark v. Trailways, Inc., 774 S.W.2d 644, 647 (Tex. 1989).
Clark is distinguishable from the facts of this case, because the opposing party in Clark did not renew his objection at any point during trial. Id. Because Father objected to Patel's testimony before she (1) informed the jury of any result of the psychological examination or (2) released any opinion relating to Father, the trial court had an opportunity to prevent the jury from hearing Patel's testimony on those matters. Therefore, Father's objection was timely. Burrhus v. M&S Supply, Inc., 933 S.W.2d 635, 639 (Tex. App.—San Antonio 1996, writ denied) (rejecting argument that "claimed error was waived by the failure to voice the same objection and request at the moment [the witness] was called"; also distinguishing Clark); see Richards v. Tex. A&M Univ. Sys., 131 S.W.3d 550, 555 (Tex. App.—Waco 2004, pet. denied) (citing Wal-Mart Stores, Inc. v. McKenzie, 997 S.W.2d 278, 280 (Tex. 1999)); but see Welsh v. Welsh, 905 S.W.2d 615, 618 (Tex. App.—Houston [14th Dist.] 1995, writ denied) ("Because appellant failed to object when [witness] took the stand and began to testify, she presents nothing for review under this point of error.").
We treat the issue as having been preserved.
(2) Allowing Patel's Testimony Was Not an Abuse of Discretion
Father argues that his objection was based on Rule 193.6(a) of the Texas Rules of Civil Procedure, which states:
(a) Exclusion of Evidence and Exceptions. A party who fails to make, amend, or supplement a discovery response in a timely manner may not introduce in evidence the material or information that was not timely disclosed, or offer the testimony of a witness (other than a named party) who was not timely identified, unless the court finds that:
TEX. R. CIV. P. 193.6(a). "Under Rule 193.6, discovery that is not timely disclosed and witnesses that are not timely identified are inadmissible as evidence." Fort Brown Villas III Condo. Ass'n, Inc. v. Gillenwater, 285 S.W.3d 879, 881 (Tex. 2009) (per curiam)). "The burden is on the party seeking to admit the evidence to establish good cause or the lack of unfair surprise or unfair prejudice." In the Interest of R.R., No. 05-14-00773-CV, 2015 WL 5813391, at *4 (Tex. App.—Dallas Oct. 6, 2015, no pet.) (mem. op.) (citing TEX. R. CIV. P. 193.6(b); Gillenwater, 285 S.W.3d at 881).(1) there was good cause for the failure to timely make, amend, or supplement the discovery response; or
(2) the failure to timely make, amend, or supplement the discovery response will not unfairly surprise or unfairly prejudice the other parties.
"A trial court's exclusion of an expert who has not been properly designated can be overturned only on a finding of abuse of discretion." Id. (quoting Mentis v. Barnard, 870 S.W.2d 14, 16 (Tex. 1994)); see Bellino v. Comm'n for Lawyer Discipline, 124 S.W.3d 380, 383-84 (Tex. App.—Dallas 2003, pet. denied). "A trial court abuses its discretion only 'if it has acted in an unreasonable or arbitrary manner, or without reference to any guiding rules and principles.'" E.R.C., 496 S.W.3d 270, 279 (Tex. App.—Texarkana 2016, pet. denied) (quoting Saint v. Bledsoe, 416 S.W.3d 98, 101-02 (Tex. App.—Texarkana 2013, no pet.) (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)). "In considering whether the trial court abused its discretion, 'we view the evidence in a light most favorable to the court's decision and indulge every legal presumption in favor of its judgment.'" Id. (quoting In re Marriage of Ford, 435 S.W.3d 347, 350 (Tex. App.—Texarkana 2014, no pet.)).
The Department told the trial court that it believed it "gave notice in the discovery that was sent over." In an attempt to disprove the Department's statement that it had updated its discovery responses, Father introduced the Department's responses to his requests for disclosure under Rule 194.2. Father's copy of the Department's responses omitted page three. That page would have, presumably, included Father's Rule 194.2(e) request asking the Department to state the "name, address, and telephone number of persons having knowledge of relevant facts, and a brief statement of each identified person's connection with the case." TEX. R. CIV. P. 194.2. Due to its omission from the record, it is unclear whether Father propounded a request for disclosure under Rule 194.2(e) and whether the Department omitted Patel from that list. However, page four of the Department's responses showed that it did not supplement its answer with regard to Rule 194.2(f) of the Texas Rules of Civil Procedure, which governs the disclosure of information about testifying experts and their reports. See TEX. R. CIV. P. 194.2(f).
The record does not clarify whether Father sent any discovery requests to the Department other than his requests for disclosures under Rule 194.2.
"A party is not required to supplement responses to matters to which there has been no appropriate inquiry directly addressing the matter of which a party complains." Graff v. Whittle, 947 S.W.2d 629, 639 (Tex. App.—Texarkana 1997, writ denied) (citing Yarborough v. Tarrant_Appraisal Dist., 846 S.W.2d 552, 553 (Tex. App.—Fort Worth 1993, no writ)).
A party may request disclosure of any or all of the following: . . .
(f) for any testifying expert:
(1) the expert's name, address, and telephone number;
(2) the subject matter on which the expert will testify;
(3) the general substance of the expert's mental impressions and opinions and a brief summary of the basis for them, or if the expert is not retained by, employed by, or otherwise subject to the control of the responding party, documents reflecting such information;
(4) if the expert is retained by, employed by, or otherwise subject to the control of the responding party:
TEX. R. CIV. P. 194.2(f).(A) all documents, tangible things, reports, models, or data compilations that have been provided to, reviewed by, or prepared by or for the expert in anticipation of the expert's testimony; and
(B) the expert's current resume and bibliography.
Accordingly, we review the trial court's implied finding that the Department established that Father would not be unfairly surprised or unfairly prejudiced by Patel's testimony. "The purpose of Rule 194 requiring pretrial disclosure of expert witnesses is to give the opposing party sufficient information about the expert's opinions to prepare for cross-examination of the expert and to present rebuttal evidence from its own experts." In re W.D.W., 173 S.W.3d 607, 615 (Tex. App.—Dallas 2005, no pet.). Thus, "the issue of whether [an Appellant was] on notice regarding the mental impressions and opinions of the experts is relevant to whether [he] suffered unfair surprise or prejudice." In re M.H., 319 S.W.3d 137, 146-47 (Tex. App.—Waco 2010, no pet.).
At a September 15, 2015, status hearing, all parties to this litigation were informed that Father had been the subject of Patel's psychological evaluation at Applied Psychology Group, and that the Department was awaiting the results. During voir dire, the Department indicated that it might call psychologists to testify. Before Patel was called to testify, Father's testimony established that he had received and reviewed the results of Patel's examination. Father attempted to characterize the report in a manner favorable to him, stated that he agreed with the report, and opined that it would save the Court some time if it just read it all. Accordingly, the record shows that Father was aware of Patel, had her contact information, knew of the subject matter on which she would testify, and had reviewed the general substance of her mental impressions and opinions by reading her expert report.
Although the record does not establish that Father received a copy of Patel's resume and bibliography, Father did not object to Patel's qualifications, and specifically stated he had no objection to her expert report, which he agreed with.
Faced with similar circumstances, our sister courts have declined to find abuse of discretion on the part of the trial court. See Spurck v. Tex. Dep't of Family & Protective Servs., 396 S.W.3d 205, 215 (Tex. App.—Austin 2013, no pet.) (citing Brunelle v. TXVT Ltd. P'ship, 198 S.W.3d 476, 479 (Tex. App.—Dallas 2006, no pet.) (party not unfairly surprised when it had previous contact with witness and knew witness had knowledge of relevant events)); In re E.A.G., 373 S.W.3d 129, 145 (Tex. App.—San Antonio 2012, pets. denied); M.H., 319 S.W.3d at 147; In re A.P., No. 03-05-00645-CV, 2007 WL 283006, at *7 (Tex. App.—Austin Feb. 1, 2007, no pet.) (mem. op.). For example, in concluding that the trial court properly overruled an appellant's Rule 193.6 objection to an expert's testimony based on the absence of the Department's supplementation of the expert's curriculum vitae or expert report, our sister court wrote, "Here, we cannot say the trial court abused its discretion in finding that [Mother] was not surprised by the evidence because the record shows [the expert] was the parents' counselor before trial." E.A.G., 373 S.W.3d at 145.
In Spurck, the Austin Court of Appeals opined that child-termination cases involve unique considerations which the trial court must weigh in determining whether testimony should be excluded for discovery violations. The court wrote:
We note that, in a traditional civil context, this record might present a close call about whether the Department carried its burden of establishing lack of unfair surprise. "However, in determining issues regarding the conservatorship of, possession of, and access to a child, the court's primary consideration is always the best interest of the child. Compared to the best interest of the child, technical rules of pleading and practice are of little importance . . . ." In re P.M.B., 2 S.W.3d 618, 624 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (internal citations omitted) (superseded on other grounds); see also Taylor v. Taylor, 254 S.W.3d 527, 534 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (best interest of child may be factor in trial court's ruling on discovery sanctions). We have recognized that, with regard to the best interest of the child, "[i]t is in the court's primary interest to have as much evidence before it as possible." R.H. v. Tex. Dep't of Protective and Regulatory Servs., No. 03-00-00018-CV, 2001 WL 491119, at *8 (Tex. App.—Austin May 10, 2001, pet. denied) (mem. op.) (concluding trial court erred in excluding appellant's grandparents' testimony "[r]egardless of whether the Department suffered unfair surprise or whether appellant had good cause for" failing to respond to Department's request for discovery).Spurck, 396 S.W.3d at 215.
Here, during the pendency of this litigation, Father complied with the Department's request to have Patel conduct a psychological examination on him and was aware that the results of that examination would be delivered to the Department. Because Father was the subject of and had the opportunity to review Patel's report, the trial court could have determined he was not unfairly surprised by the substance of her testimony. Accordingly, in line with the above-referenced opinions by our sister courts, we cannot say that the trial court abused its discretion in making its Rule 193.6 ruling in this case.
Moreover, even assuming Father was unfairly surprised by the admission of Patel's testimony, error, if any, was cured when Father did not object to the introduction of Patel's report, but instead stated that it should be "absolutely" admitted into evidence. See M.H., 319 S.W.3d at 148. For the foregoing reasons, we overrule Father's sole point of error.
In M.H., our sister court wrote,
Assuming without deciding Appellants were unfairly surprised or prejudiced by the admission of [expert's] testimony, his opinion was admitted elsewhere without objection when his written consultation report was admitted in evidence. Therefore, any error in the admission of his testimony was rendered harmless by the admission of the same evidence in written form without objection.M.H., 319 S.W.3d at 148.
We affirm the trial court's judgment.
Josh R. Morriss, III
Chief Justice Date Submitted: February 3, 2017
Date Decided: February 15, 2017