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Hatley v. McCarter12/16/1998
Appellant Larry Dale Hatley appeals the trial court's judgment, based upon a jury's verdict, terminating his parental rights to his minor daughter. He argues that:
(1) the judgment is fatally defective; (2) the evidence is legally and factually insufficient to support termination and the trial court did not sufficiently review the evidence; (3) the trial court erred in not transferring venue to McLennan County; (4) the trial court erred in improperly instructing the jury on the law and in making an impermissible comment on the weight of the evidence; (5) the trial court erred in failing to grant a new trial because of incurable jury argument; and (6) appellee Janet Dickerson McCarter deprived Hatley of a fair trial by constant references to improper matters. We resolve all of Hatley's issues against him and affirm the trial court's judgment.
Hatley's first issue raises the question whether the decree of termination is void because its findings are in the disjunctive. He quotes the findings in the decree:
The Court finds by clear and convincing evidence that
LARRY HATLEY has:
(1)
knowingly placed or knowingly allowed the child to remain in conditions or surroundings that endanger the physical or emotional well-being of the child; or
(2)
engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangers the physical or emotional well-being of the child.
The Court also finds by clear and convincing evidence that termination of the parent-child relationship between
LARRY HATLEY and
LAUREN ELIZABETH HATLEY is in the best interest of the child.Hatley argues that, because the findings are in the disjunctive, he does not know whether the jury found that he knowingly placed the child in endangering conditions or surroundings or knowingly engaged in conduct endangering the child. He concludes that the decree is void as a result. See In the Interest of S H , 548 S.W.2d 804, 806 (Tex. Civ. App.--Amarillo 1977, no writ).
S H , however, has been effectively, if not expressly, overruled. A court of appeals held that the jury charge in a termination case must contain discrete questions, because otherwise five jurors could have concluded that an appellant placed a child in a dangerous situation and the other five could have concluded that the appellant engaged in dangerous conduct. See E.B. v. Texas Dept. of Human Servs., 766 S.W.2d 387, 388-90 (Tex. App.--Austin 1989), rev'd, Texas Dept. of Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex. 1990) (op. on mot. for reh'g). In reversing the court of appeals, the Texas Supreme Court concluded that broad form submissions were proper in termination cases and approved of the trial court's submitting a single question (for each of two children):
"Should the parent-child relationship between [the parent] and the child . . . be terminated?" E.B., 802 S.W.2d at 648-49. Yet if it is permissible for a jury to answer only the ultimate issue, whether the parent-child relationship should be terminated, it is difficult to see why disjunctive findings supporting the ultimate finding are harmful.
Hatley argues that E.B. is "erroneously decided and not binding upon this Court." We disagree. The courts of appeals, as intermediate courts, must follow supreme court decisions on controlling law until the supreme court changes the law. Nat'l Convenience Stores, Inc., v. T.T. Barge Cleaning Co., 883 S.W.2d 684, 687 (Tex. App.--Dallas 1994, writ denied).
Further, the very argument made in Hatley's first issue was presented to this Court in a mandamus proceedin
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