In Re R.E.S. and P.R.S. v. the State of Texas

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
————————————

No. 08-24-00350-CV
————————————

In re R.E.S. and P.R.S.

On Appeal from the 383rd District Court
El Paso County, Texas
Trial Court No. 2018DCM2671

OPINION

This original proceeding arises from a jury verdict terminating the parental rights of Real

Party in Interest, T.J.P. (Father), with respect to E.A.P. (the Child), in a private suit between Father

and Relators, R.E.S. (Uncle) and P.R.S. (Aunt). In two issues, Aunt and Uncle challenge the trial

court’s grant of Father’s motion for new trial, arguing: (1) the evidence is factually and legally

sufficient to support the jury’s endangerment and best interest findings, and (2) there was no new
admissible evidence of juror and bailiff misconduct to warrant a new trial. We conditionally grant

mandamus relief.

I. BACKGROUND
A. The underlying proceedings

Following Father’s release from a 13-month prison sentence, he filed his Petition to Modify

Parent-Child Relationship (Petition to Modify) on September 21, 2020. At the time, the Child was

three years old and had been living with Aunt and Uncle since January 31, 2019. Father sought to

modify the June 7, 2018 Agreed Order in Suit Affecting the Parent-Child Relationship (Agreed

Order), which had appointed Mother and Father as joint managing conservators of the Child, with

Mother having the exclusive right to designate and maintain the Child’s primary residence.

Through his Petition to Modify, Father sought to have the exclusive right to designate and

maintain the Child’s primary residence. Aunt and Uncle learned of Father’s release from prison

through this petition and intervened on October 1, 2020. As of this date, Aunt and Uncle had actual

care, control, and possession of the Child for approximately two years. 1 Aunt and Uncle

intervened to terminate Father’s parental rights or, alternatively, to be appointed as joint managing

conservators with exclusive rights over the Child. Although Aunt and Uncle also sought to

terminate the parental rights of Mother, this original proceeding concerns only the termination of

Father’s parental rights, as Mother voluntarily relinquished her rights in 2021 and is not a party to

this original proceeding.

1
The provision in place at the time provided that a “person . . . who has had actual care, control, and possession of
the child for at least six months ending not more than 90 days preceding the date of the filing of the petition” has
standing to file suit. Act of April 9, 2019, 86th Leg., R.S., ch. 130, § 2, sec. 102.003(a)(9), 2019 Tex. Gen. Laws 220,
221 (amended 2019) (current version at Tex. Fam. Code Ann. § 102.003(a)(9)).

2
B. The trial

A jury trial was held in August 2024. At the time of trial, the Child was six years old and

continued to live with Aunt and Uncle. As a preliminary matter and outside the jury’s presence,

the trial court ruled that only CPS records dated after the Agreed Order would be admitted into

evidence. Several witnesses testified about the Child’s well-being, caregiving environment, and

the parties’ actions and circumstances leading to and following the Child’s removal and placement

with Aunt and Uncle.

Father testified about his history of addiction to opiates, methamphetamine, and heroine.

He stated he completed a substance abuse program and therapy in 2017 while in prison and had

maintained his sobriety for over five years. Since the filing of his modification suit, Father had

taken about eight random drug tests, all of which were negative. Father also testified to his stability

in employment and family life, and his efforts to build a relationship with the Child. He stated that

he filed for modification to become the exclusive parent with the right to designate the Child’s

residence, believing it was in the Child’s best interest to live with him. Father expressed

appreciation for Aunt and Uncle, acknowledged the positive role they play in the Child’s life, and

stated he wants them to remain involved in the Child’s life should he be appointed as the primary

parent.

Father’s wife testified on behalf of Father. She described their family home and dynamic

and portrayed Father as a caring parent, while also acknowledging her own history of alcohol

abuse. Father’s own father also testified positively of Father’s progress and of the bond Father

shares with the Child. The Child’s therapist also testified on Father’s behalf. The therapist

described the Child’s emotional state and the behavioral differences she observed between the two

households. She testified that the Child referred to both Aunt and Uncle, and Father and Father’s

3
wife, as “mom and dad” and expressed the Child feeling “stuck in the middle.” She also testified

she believed it would negatively affect the Child to lose his relationship with Father.

Aunt and Uncle took the stand on their own behalf and testified about the changes they

observed in the Child’s behavior after visits with Father began. They received the Child when he

was one and explained that after overnight visits with Father began, the Child started experiencing

significant emotional and behavioral issues, including night terrors, anxiety, bed-wetting and

defecation, and difficulties at school. According to their testimony, they believed it was in the

Child’s best interest to terminate Father’s parental rights and for the Child to remain with them

indefinitely, or alternatively, to be appointed joint managing conservators with exclusive rights

over the Child. They acknowledged that they had not voluntarily allowed Father access to the

Child and were hesitant about including Father in the Child’s life.

Mother testified on Aunt and Uncle’s behalf. The Department first became involved in

2017 while Mother was in jail, where she learned she was pregnant with the Child and reported

her drug use. Mother also testified about her and Father’s past struggles during their relationship,

including their past drug use and Father’s physical violence toward her during and after her

pregnancy with the Child. Mother’s older son, R.A.M., recounted the conditions he experienced

while living with them during that time and confirmed Mother’s account of Father’s physical

violence toward her. Mother also testified to incidents of Father’s criminal conduct. Mother

testified that while she was pregnant with the Child, Father convinced her to steal baby items with

him from a department store. Father was eventually arrested and officers discovered heroin in his

possession. Following the Child’s birth and removal, Father was arrested again for failing to

present identification and was found in possession of heroin. A few months later, he was arrested

again for harboring undocumented immigrants and served a 13-month prison sentence.

4
A CPS investigator also testified and discussed the outcome of a report based on suspicions

that Father was seeing the Child unsupervised when he was not supposed to. Allegations of

physical abuse were ruled out and a finding of “unable to determine” regarding neglectful

supervision was found based on conflicting statements. During this investigation, the Child tested

positive for methamphetamines and drug paraphernalia was found in Father’s apartment. A family

drug court coordinator also testified on behalf of Aunt and Uncle. The coordinator provided

background on Father’s earlier participation in a substance abuse recovery program and noted his

eventual discharge from it for noncompliance.

The parties rested and closed, and the jury charge first presented questions regarding

termination. If the evidence supported termination, the charge instructed the jurors to skip the

conservatorship questions and proceed directly to questions concerning attorney’s fees. The jury

returned a verdict terminating Father’s parental rights under Subsections D and E of

§ 161.001(b)(1) of the Texas Family Code, and found termination was in the Child’s best interest.

See Tex. Fam. Code Ann. 161.001(b)(1)(D), (E), (2).

C. Post-trial motions

Father filed his motion for Judgment Notwithstanding the Verdict (JNOV) and motion for

new trial on the same day. Father’s JNOV argued that the evidence was legally insufficient to

support the jury’s endangerment and best interest findings, and that an inconsistent juror poll

further warranted setting aside the jury’s verdict. The motion for new trial challenged the legal and

factual sufficiency of the jury’s endangerment and best interest findings. Father also asserted

grounds of juror confusion, an inconsistent juror poll, juror misconduct, and bailiff misconduct, as

additional grounds for a new trial. In support of the new-trial motion, Father submitted his own

affidavit, the jury charge, and affidavits from three jurors.

5
A hearing on both motions was held on November 20, 2024. At the hearing, no live

testimony was heard, and the trial court admitted the three juror affidavits. The trial court

ultimately denied Father’s JNOV and granted his motion for new trial. The trial court provided

two grounds in granting the motion for new trial: (1) the evidence was legally and factually

insufficient to support the jury’s findings, and (2) newly discovered evidence of certain misconduct

warrants a new trial. This original proceeding challenging the trial court’s grant of the motion for

new trial followed.

II. MANDAMUS
Mandamus may issue to correct a clear abuse of discretion when there is no other adequate

remedy by law. In re Essex Ins. Co., 450 S.W.3d 524, 526 (Tex. 2014) (orig. proceeding). To

obtain mandamus relief, a relator must generally satisfy two requirements: (1) show relator has no

adequate remedy at law; and (2) establish the trial court committed a clear abuse of discretion. In

re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). The Texas

Supreme Court has recognized that there is no adequate remedy by appeal when a trial court issues

an erroneous new-trial order. In re Rudolph Auto., LLC, 674 S.W.3d 289, 299 (Tex. 2023)

(orig. proceeding). Accordingly, the first requirement is met, and our inquiry becomes whether the

trial court abused its discretion in granting a new trial. A trial court abuses its discretion when its

ruling amounts to a clear and prejudicial error of law, or when it fails to correctly analyze or apply

the law to the facts. In re H.E.B. Grocery Co., L.P., 492 S.W.3d 300, 302–03 (Tex. 2016)

(orig. proceeding) (per curiam).

III. MOTION FOR NEW TRIAL
Rule 320 of the Texas Rules of Civil Procedure addresses new trials and provides, in part:

6
New trials may be granted and judgment set aside for good cause, on motion or on
the court’s own motion on such terms as the court shall direct. New trials may be
granted when the damages are manifestly too small or too large.

Tex. R. Civ. P. 320. As the Texas Supreme Court has stated, “Texas trial courts have historically

been afforded broad discretion in granting new trials. But that discretion is not limitless.” In re

Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W.3d 204, 210 (Tex. 2009)

(orig. proceeding) (internal citation omitted). Such discretion does not permit a trial judge to

substitute his or her own findings for that of the jury. Id. at 212. Jury trials are a cornerstone of our

constitutional system for resolving disputes when the parties cannot reach a resolution on their

own. Id. at 211 (citing Tex. Const. art. I, § 15, art. V, § 10; Wal–Mart Stores, Inc. v. Seale, 904

S.W.2d 718, 722 (Tex. App.—San Antonio 1995, no writ)). And when parties choose to resolve a

legal dispute by jury trial, both they and the public generally expect that a jury verdict will close

the trial process. See Columbia, 290 S.W.3d at 213; see also In re Wong, No. 08-24-00354-CV,

2024 WL 4983171, at *3 (Tex. App.—El Paso Dec. 4, 2024, orig. proceeding) (mem. op).

“[B]ecause disregarding a jury’s verdict is an unusually serious act that imperils a constitutional

value of immense importance—the authority of a jury—the trial court may only do so when clearly

supported by sound reasons.” In re Lemus, No. 13-25-00120-CV, 2025 WL 1722401, at *2

(Tex. App.—Corpus Christi June 20, 2025, orig. proceeding) (mem. op.) (quoting In re Rudolph

Auto., LLC, 674 S.W.3d at 302) (cleaned up). Accordingly, trial courts are required to “provide

litigants with an understandable, reasonably specific explanation for setting aside a jury verdict

and ordering a new trial.” In re Bent, 487 S.W.3d 170, 173 (Tex. 2016) (orig. proceeding) (cleaned

up); Columbia, 290 S.W.3d at 213. This requirement is generally satisfied when a trial court’s

stated bases is “a reason for which a new trial is legally appropriate” and “is specific enough to

indicate that the trial court did not simply parrot a pro forma template, but rather derived the

7
articulated reasons from the particular facts and circumstances of the case at hand.” In re Bent, 487

S.W.3d at 173 (quoting In re United Scaffolding, Inc., 377 S.W.3d 685, 688–89 (Tex. 2012)

(orig. proceeding)). If the trial court’s order granting a new trial satisfies these facial requirements,

appellate courts are then required to “conduct a merits review of the bases for a new trial order”

and grant mandamus relief “[i]f the record does not support the trial court’s rationale for ordering

a new trial.” Id. (citing In re Toyota Motor Sales, U.S.A., Inc., 407 S.W.3d 746, 749 (Tex. 2013)

(orig. proceeding)). “In short, we follow a two-step process: first, we review the sufficiency of the

trial court’s stated reasons for granting a new trial; second, if the stated reasons are facially valid,

we conduct a merits-based review of the reasons given.” In re Wong, No. 08-25-00098-CV, 2025

WL 2055536, at *3 (Tex. App.—El Paso, July 22, 2025, orig. proceeding) (mem. op.) (citing In re

United Scaffolding, 377 S.W.3d at 688–89; In re Toyota, 407 S.W.3d at 749, 758).

Here, the new-trial order provided two grounds for setting aside the jury’s verdict: (1) the

evidence was legally and factually insufficient to support the jury’s findings of endangerment and

best interest; and (2) newly discovered evidence of juror and bailiff misconduct warrants a new

trial. We begin with the challenge to the sufficiency of the evidence.

A. Legal and factual sufficiency

In their first issue, Aunt and Uncle challenge the trial court’s grant of a new trial, arguing

that the evidence was legally and factually sufficient to support the jury’s endangerment and best

interest findings. They contend that the trial court’s order “improperly focused only on evidence

supporting Father’s requested relief and ignored the evidence supporting the jury’s verdict[.]” In

response, Father maintains the trial court did not abuse its discretion “because the reasons provided

in its order were clearly identified, legally appropriate and reasonably specific.” We disagree and

8
find that the bases of the trial court’s order concerning the sufficiency of the evidence does not

comply with the facial requirements established in Columbia and United Scaffolding.

(1) Applicable law and standard of review

A parent’s “right to the companionship, care, custody, and management of his or her

children is an interest far more precious than any property right.” Int. of A.C., 560 S.W.3d 624,

629–30 (Tex. 2018) (citing Santosky v. Kramer, 455 U.S. 745, 758–59 (1982)). And although

parental rights are constitutional, they are not absolute, and “[j]ust as it is imperative for courts to

recognize the constitutional underpinnings of the parent–child relationship, it is also essential that

emotional and physical interests of the child not be sacrificed merely to preserve that right.”

Int. of C.H., 89 S.W.3d 17, 26 (Tex. 2002).

Texas Family Code § 161.001 “balances the convergent and divergent interests of parent

and child” and permits termination of a parent–child relationship only if: (1) the parent’s conduct

satisfies at least one statutory ground for termination; and (2) termination is in the best interest of

the child. Int. of A.C., 560 S.W.3d at 630. Due process mandates clear and convincing evidence

for each element. Int. of N.G., 577 S.W.3d 230, 235 (Tex. 2019). Evidence is clear and convincing

if it is of the “measure or degree of proof that will produce in the mind of the trier of fact a firm

belief or conviction as to the truth of the allegations sought to be established.” Id.; Tex. Fam. Code

Ann. § 101.007.

A single ground under Texas Family Code § 161.001(b)(1)(A)–(V) is sufficient to uphold

termination on appeal, in addition to upholding a challenged best-interest finding. Int. of N.G., 577

S.W.3d at 237. However, when sufficiency challenges are made under Subsections D or E, due

process requires that courts review the sufficiency of the evidence under both subsections because

of the future consequences of those findings in providing predicates for terminating a parent’s right

9
to other children. Tex. Fam. Code Ann. § 161.001(b)(1)(M) (parental rights may be terminated if

parent “had his or her parent-child relationship terminated with respect to another child based on

a finding that the parent’s conduct was in violation of Paragraph (D) or (E) or substantially

equivalent provisions of the law of another state”).

Subsection D allows termination if the court finds, by clear and convincing evidence, that

the parent “knowingly placed or knowingly allowed the child to remain in conditions or

surroundings which endanger the physical or emotional well-being of the child[.]” Tex. Fam. Code

Ann. 161.001(b)(1)(D). The focus of endangerment is on the child’s surroundings and

environment, specifically, the “suitability of the child’s living conditions as well as the conduct of

parents or others in the home.” Int. of O.E.R., 573 S.W.3d 896, 905 (Tex. App.—El Paso 2019,

no pet.).

Subsection E focuses more on parental conduct and allows termination if the court finds,

by clear and convincing evidence, that the parent “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(b)(1)(E). Proof of endangerment is required, which

means exposure to loss or injury, or to jeopardize a child’s emotional or physical health. Castaneda

v. Texas Dep’t of Prot. and Regul. Servs., 148 S.W.3d 509, 522 (Tex. App.—El Paso 2004,

pet. denied). The cause of the danger to the child must be the parent’s conduct alone, as evidenced

by the parent’s actions, omissions, or failure to act. Id. Courts must also examine what the parent

did both before and after the child was born. Id. The conduct need not have been directed at the

child, nor must it have resulted in actual harm to the child. Id. Additionally, Subsection E demands

more than a single act or omission; a voluntary, deliberate, and conscious course of conduct by the

parent is required. Id.

10
To support termination of parental rights, the law requires both clear and convincing

evidence of at least one predicate finding, and that termination is in the child’s best interest.

Tex. Fam. Code Ann. § 161.001; Int. of R.J.G., 681 S.W.3d 370, 377 (Tex. 2023). In determining

whether the evidence is sufficient to support the jury’s finding that termination is in the child’s

best interest, courts employ the Holley factors. Holley v. Adams, 544 S.W.2d 367, 371–72

(Tex. 1976). Those factors include:

(A) the desires of the child; (B) the emotional and physical needs of the child now
and in the future; (C) the emotional and physical danger to the child now and in the
future; (D) the parental abilities of the individuals seeking custody; (E) the
programs available to assist these individuals to promote the best interest of the
child; (F) the plans for the child by these individuals . . . ; (G) the stability of the
home . . . ; (H) the acts or omissions of the parent which may indicate that the
existing parent-child relationship is not a proper one; and (I) any excuse for the acts
or omissions of the parent.

Id. These factors are not exhaustive, and a court may consider other factors. Int. of K-A.B.M., 551

S.W.3d 275, 287 (Tex. App.—El Paso 2018, no pet.). Additionally, evidence of each factor is not

required to terminate the parent-child relationship and the focus for this determination is on the

child, not the parent. Id.

When the legal sufficiency of the evidence is challenged in a parental termination case,

courts review all the evidence in the light most favorable to the finding to “determine whether a

reasonable trier of fact could have formed a firm belief or conviction that its finding was true.”

Int. of J.O.A., 283 S.W.3d 336, 344 (Tex. 2009) (quoting Int. of J.F.C., 96 S.W.3d 256, 266

(Tex. 2002)). Courts defer to the factfinder’s conclusions, indulge every reasonable inference

supporting the finding, and presume the factfinder resolved any disputed facts in favor of the

findings. Int. of L.D.C., 622 S.W.3d 63, 69 (Tex. App.—El Paso 2020, no pet.). As a corollary to

11
this requirement, courts must disregard all evidence that a reasonable factfinder could have

disbelieved or found to be incredible. Int. of J.F.C., 96 S.W.3d at 266.

In a factual sufficiency review, courts must likewise give due consideration to the evidence

the factfinder could have reasonably found to be clear and convincing and determine “whether the

evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth”

of the allegations. Id. at 266. Courts must not substitute their judgment for that of the factfinder.

Int. of D.R.V., No. 08-22-00238-CV, 2023 WL 2544577, at *5 (Tex. App.—El Paso Mar. 16, 2023,

no pet.) (mem. op.). The evidence is factually insufficient when, in light of the entire record, the

disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so

significant that a factfinder could not reasonably have formed a firm belief or conviction.

Int. of J.F.C., 96 S.W.3d at 266.

(2) Analysis

We begin by reviewing the new-trial order to determine whether it passes muster under

Columbia and United Scaffolding. In the first step of the two-step analysis, we consider whether

the new-trial order provides a clear basis as to why the jury verdict was set aside. In re Columbia,

290 S.W.3d at 213; In re United Scaffolding, 377 S.W.3d at 688–89. To be facially valid, the

articulated rationale must be (1) “a reason for which a new trial is legally appropriate” and (2)

“specific enough to indicate that the trial court did not simply parrot a pro forma template, but rather

derived the articulated reasons from the particular facts and circumstances of the case at hand.” In re

United Scaffolding, 377 S.W.3d at 688–89.

In granting Father’s motion for new trial, the trial court articulated its rationale in a three-

page order. The first two paragraphs of the new-trial order provide:

12
A fair trial includes a jury properly instructed on the issues authorized and
support[ed] by the law governing the case. In a case involving Termination of
parental [rights], the “death penalty” of civil cases, the importance of safeguarding
a parent[’s] right to a fair trial is even more pronounced.

The jury verdict was factually and legally insufficient to support section TFC
161.001(b)(1)(D) and (E) findings as grounds for termination OR best interests.
Due process mandates a heightened standard of proof which is clear and convincing
evidence, and that burden of proof was always on the Samaniego[]s. There was not
clear and convincing evidence to support the jury finding of termination. There was
no measure or degree of proof that would produce in the mind of the trier of fact a
firm belief or conviction as to the truth of the allegations sought to be established.
The Court finds that the verdict is contrary to the overwhelming weight of all
relevant evidence as to be clearly wrong and unjust.

We begin by pointing out that the trial court’s initial explanation constitutes the type of

“muddled” factual and legal sufficiency challenge that the Texas Supreme Court has disapproved

in evaluating a trial court’s ruling on a motion for new trial. See In re Bent, 487 S.W.3d at 179.

For instance, the rationale that the evidence is “contrary to the great weight and preponderance of

the evidence” suggests a factual sufficiency analysis, but other rationale, such as claims that much

of the evidence is uncontroverted, suggests a legal sufficiency analysis. If true, Aunt and Uncle

conclusively established their claim and Father presented no evidence. Under such circumstances,

as noted by the Texas Supreme Court in Bent, “it appears judgment notwithstanding the verdict,

not a new trial, was appropriate.” Id. at 175, 179.

The first two paragraphs of the new-trial order set forth the legal standards applicable to

the relevant family law issues. As the Texas Supreme Court has articulated, “the mere recitation

of a legal standard, such as a statement that a finding is against the great weight and preponderance

of the evidence, will not suffice.” In re United Scaffolding, Inc., 377 S.W.3d at 689. We turn to

the remainder of the new-trial order, which provides a lengthy recitation of certain testimony:

The evidence included but was not limited to testimony that the child was extremely
bonded to his father and had a relationship with him, his wife and extended family

13
since 2021; that the child’s wishes were to continue a relationship with his father;
that he considers his father/stepmom and the Samaniego[]s his family per the
therapist and pictures he drew; that father had a standard possession order since
December 2023; that the father had a substance abuse problem prior to his
incarceration over 5 years ago; that the father attended substance abuse counseling
and therapy in prison; that father had maintained his sobriety since his release from
prison; that he was released early from parole and submitted to drug tests; that upon
release he immediately within months attempted to reconnect with a relationship
with his child, that all his hair follicle tests that he voluntarily submitted to during
the pendency of this case were negative; that he was incarcerated when the child
was removed due to actions by the mother; that he has maintained gainful and
consistent employment since his release from prison; that he has familial and
spiritual support; that he complied with the Court’s orders and respected that
reconnecting to his child would take time; that he consistently participated in
therapy and family counseling and wished to enter into coparenting counseling with
the Samaniego[]s as recommended by the therapist; that the therapist testified to a
bond and close relationship between the father and the child and that to end that
relationship would have detrimental effects on the child; that the aunt/uncle had not
thought about post termination plans or addressing the deprivation of that
relationship and in fact intended to terminate counseling telling the child that
Mr. Perez was “just gone.”

In reviewing the Holley factors, the jury’s findings are contrary to the evidence
presented and are legally and factually insufficient to establish a firm conviction in
the mind of the trial court that termination of Mr. Perez’s parental rights is in the
child’s best interest. The child’s desire to maintain a relationship with his biological
father and extended family was uncontroverted. The child’s emotional and physical
needs were being met now and there was no clear and convincing evidence that the
father would fail in the future. There was no clear and convincing evidence that the
present and future actions would warrant termination despite father’s past actions
which were remote in time other than speculation as to relapse. There was no clear
and convincing evidence that Tom Perez lacked parenting abilities now. There was
no clear and convincing evidence that father did not comply with the programs
ordered by the Court and therapist indicating his present and future intention. There
was no clear and convincing evidence that the severing of the relationship would
have a positive effect on the child, in fact the contrary testimony by the therapist
indicated that child would suffer if his father was removed from his life. Father’s
testimony indicated his goals for the child and continued relationship with the
Samaniego[]s. Conversely, the Samaniego[]s repeatedly indicated they did not have
a plan on addressing the child’s emotional needs post termination.

The trial court advanced 26 evidentiary points to support its challenge to the sufficiency of

the evidence. Aunt and Uncle maintain that “instead of considering the evidence as a whole,

14
Respondent merely recited isolated and disputed pieces of evidence that would support Father’s

position and ignored evidence that would support the jury’s verdict—which is not the correct legal

standard.” We agree.

While the trial court provides a long list of evidentiary points, it does not in any way explain

how that evidence undermines the jury’s verdict. Nearly all the evidence cited in the new-trial

order goes to the best interest finding; there is no connection or discussion of the evidence

regarding either Subsections D or E (the endangerment grounds). As the parties seeking

termination, Aunt and Uncle bore the burden to prove, by clear and convincing evidence, one of

the predicate grounds under § 161.001(b)(1) of the Texas Family Code—here, either Subsection

D or E—and that termination is in the Child’s best interest. See Int. of R.J.G., 681 S.W.3d at 377

(requiring that the Department must “establish by clear and convincing evidence at least one of the

predicate findings . . . . And regardless of which predicate it asserts to justify termination, the

Department must also prove by clear and convincing evidence that termination is in the child’s

best interest”).

Subsection D requires a finding, by clear and convincing evidence, that the parent

“knowingly placed or knowingly allowed the child to remain in conditions or surroundings which

endanger the physical or emotional well-being of the child[.]” Tex. Fam. Code Ann.

§ 161.001(b)(1)(D). Subsection E requires a finding, by clear and convincing evidence, that the

parent “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(b)(1)(E). The new-trial order does not connect the cited evidence or explain how the

evidence undermines the jury’s findings of endangerment under either Subsections D or E. As for

the stray remark in the new-trial order of Father’s “past actions [being] remote in time other than

15
speculation as to relapse[,]” that was a matter for the factfinder, as the “factfinder may infer from

past conduct endangering the child’s well-being that similar conduct will recur if the child is

returned to the parent.” Int. of M.R.J.M., 280 S.W.3d 494, 502 (Tex. App.—Fort Worth 2009,

no pet.). The trial court employed a method of listing evidence it relied on, without providing an

explanation as to how that evidence undermines the jury’s endangerment findings. In other words,

the new-trial order does not actually discuss the evidence in relation to whether Father knowingly

placed or knowingly allowed the Child to remain in conditions or surroundings which endangered

his physical or emotional well-being (Subsection D), or whether Father engaged in conduct or

knowingly placed the Child with persons who engaged in conduct which endangered the physical

or emotional well-being of the Child (Subsection E). Tex. Fam. Code Ann. § 161.001(b)(1)(D),

(E).

“To be facially valid, a new-trial order based on a factual-sufficiency review must indicate

that the trial judge considered the specific facts and circumstances of the case at hand and explain

how the evidence (or lack of evidence) undermines the jury’s findings.” In re Bent, 487 S.W.3d at

176 (cleaned up). Yet here, the trial court merely substituted its own judgment for the jury’s. And

although a “trial court need not provide a detailed catalog of the evidence[,]” its rationale must

nevertheless “ensure that, however subject to differences of opinion its reasoning may be, it was

not a mere substitution of the trial court’s judgment for the jury’s.” United Scaffolding, 377 S.W.3d

at 688–89. The trial court’s duty was to “explain how the evidence (or lack of evidence)

undermines the jury’s findings.” Id. The trial court failed to do so. Instead, it tangentially lists

evidence in support of Father’s position, without addressing how that evidence undermines the

jury’s findings. Significantly, the trial court also ignored evidence proffered by Aunt and Uncle to

support the jury’s findings of endangerment. For example, the jury heard evidence of Father’s past

16
criminal conduct and drug use during the Department’s investigation, including that the Child

tested positive for methamphetamines in connection with a report made about Father’s

unsupervised visitation with the Child, and that drug paraphernalia was found in Father’s

apartment during that investigation. Father also testified that since his release from prison in 2018,

he had not undergone a psychological assessment for his addictions and had not completed any

rehabilitation or substance abuse programs outside of prison. Other evidence included Father’s

enrollment in a drug court program on May 29, 2018. He tested positive for methamphetamines

and cocaine at intake and was ultimately discharged from the program due to noncompliance. The

jury also heard Mother’s testimony that Father tackled her from behind when she was five months

pregnant and shoved her on another occasion after the Child was born.2

In sum, the trial court’s stated bases with respect to the sufficiency of the evidence “does

not amount to a cogent and reasonably specific explanation of the reasoning that led the court to

conclude that a new trial was warranted.” In re Bent, 487 S.W.3d at 173 (citing United Scaffolding,

377 S.W.3d at 688) (cleaned up). And it does not “provide the parties any assurance that the jury’s

decision was set aside only after careful thought and for valid reasons.” Id. (cleaned up). Because

the trial court’s stated bases do not meet Columbia and United Scaffolding’s facial requirements,

the order is not facially valid as required by the Texas Supreme Court. The trial court therefore

abused its discretion in granting a new trial based on its articulated ground of insufficient evidence

to support the jury’s endangerment and best interest findings.

Aunt and Uncle’s first issue is sustained.

2
To be clear, our review of the trial court’s rationale of insufficient evidence is a facial review only, but this highlights
how the trial court substituted the factfinder’s findings with its own. See In re United Scaffolding, 377 S.W.3d at 688
(establishing that a trial court’s stated reason cannot be “to substitute the trial court's judgment for that of the jury”);
In re Bent, 487 S.W.3d at 176 (explaining that a new-trial order amounts to an abuse of discretion when “the articulated
reasons plainly state that the trial court merely substituted its own judgment for the jury’s”).

17
B. Misconduct

In their second issue, Aunt and Uncle argue the trial court abused its discretion in granting

a new trial based on new evidence of misconduct by the jury and the bailiff, asserting that Father

presented no admissible evidence to support a new trial on these grounds. Father responds by

stating only that “the affidavits show evidence that the jurors had outside influence and discussed

personal matters and opinions not in evidence. The trial court admitted the affidavits” and that

“[e]ven if the affidavits are considered inadmissible, there is no harm because this Court has other

grounds to affirm the trial court’s ruling.”

(1) Applicable law and standard of review

To warrant a new trial on grounds of misconduct, the complaining party has the burden to

prove: (1) there was misconduct; (2) it was material; and (3) it probably caused injury. Golden

Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362, 372 (Tex. 2000). The complaining party bears the

burden to prove all three elements before a new trial can be granted. In re Health Care Unlimited,

Inc., 429 S.W.3d 600, 602 (Tex. 2014) (orig. proceeding). Misconduct must be proved only

through evidence of overt acts of misconduct. Fountain v. Ferguson, 441 S.W.2d 506, 507

(Tex. 1969). “All conversation is an overt act, but not everything said in the jury room is a proper

subject of inquiry.” Cortez v. Med. Prot. Co. of Ft. Wayne, Ind., 560 S.W.2d 132, 137 (Tex. App.—

Corpus Christi 1977, writ ref’d) (citing Trousdale v. Texas & New Orleans Railroad Co., 276

S.W.2d 242, 243 (Tex. 1955)).

Rule 327 of the Texas Rules of Civil Procedure provides, in relevant part:

a. When the ground of a motion for new trial, supported by affidavit, is
misconduct of the jury or of the officer in charge of them, or because of any
communication made to the jury . . . the court shall hear evidence thereof from
the jury or others in open court, and may grant a new trial if such misconduct
proved, or the communication made . . . be material, and if it reasonably

18
appears from the evidence both on the hearing of the motion and the trial of
the case and from the record as a whole that injury probably resulted to the
complaining party.

b. A juror may not testify as to any matter or statement occurring during the
course of the jury’s deliberations or to the effect of anything upon his or any
other juror’s mind or emotions as influencing him to assent to or dissent from
the verdict concerning his mental processes in connection therewith, except
that a juror may testify whether any outside influence was improperly brought
to bear upon any juror. Nor may his affidavit or evidence of any statement by
him concerning a matter about which he would be precluded from testifying
be received for these purposes.

Tex. R. Civ. P. 327. Similarly, Texas Rule of Evidence 606(b) provides, in relevant part:

(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity
of a verdict or indictment, a juror may not testify about any statement made or
incident that occurred during the jury’s deliberations; the effect of anything on
that juror’s or another juror’s vote; or any juror’s mental processes concerning
the verdict or indictment. The court may not receive a juror’s affidavit or
evidence of a juror’s statement on these matters.

(2) Exceptions. A juror may testify:

(A) about whether an outside influence was improperly brought to bear on
any juror; or
(B) to rebut a claim that the juror was not qualified to serve.3

Tex. R. Evid. 606(b). Both the Texas Rules of Civil Procedure and the Texas Rules of Evidence

prohibit jurors from testifying about deliberations or internal mental processes, except when

outside influence is shown. See Tex. R. Civ. P. 327(b); Tex. R. Evid. 606(b). All testimony,

affidavits, and other evidence is excluded from consideration by the court when an issue regarding

jury misconduct is alleged, unless it is shown that an “outside influence was improperly brought

to bear upon any juror.” Soliz v. Saenz, 779 S.W.2d 929, 931 (Tex. App.—Corpus Christi 1989,

writ denied). Texas courts agree that an outside influence “must emanate from outside the jury and

3
The grounds articulated in Father’s motion for new trial and the trial court’s order do not allege that any juror was
not qualified to serve.

19
its deliberations.” Blackmon v. Mixson, 755 S.W.2d 179, 183 (Tex. App.—Dallas 1988, no pet.).

“Whether misconduct did in fact occur is a fact question and whether injury probably resulted is a

question of law.” Roming v. McDonald, 514 S.W.2d 129, 130 (Tex. App.—El Paso 1974,

writ ref’d). We will not disturb the trial court’s decision to grant or deny a new trial based on juror

misconduct, absent an abuse of discretion. Int. of D.G., No. 06-15-00025-CV, 2015 WL 6520251,

at *9 (Tex. App.—Texarkana Oct. 28, 2015, pet. denied) (mem. op.).

(2) Analysis

We begin by reviewing the new-trial order to determine whether it is facially valid under

Columbia and United Scaffolding. As part of the two-step process, we first consider whether the

new-trial order provides a clear basis as to why the jury verdict was set aside. In re Columbia, 290

S.W.3d at 213; In re United Scaffolding, 377 S.W.3d at 688–89. Again, to be facially valid, the

articulated rationale must be (1) “a reason for which a new trial is legally appropriate . . .;” and

(2) “specific enough to indicate that the trial court did not simply parrot a pro forma template, but

rather derived the articulated reasons from the particular facts and circumstances of the case at

hand.” In re United Scaffolding, 377 S.W.3d at 688–89. With respect to the newly discovered

evidence of alleged misconduct, the trial court articulated the following rationale:

There was newly discovered evidence and (1) the evidence came to the movant’s
knowledge since the trial; (2) it was not because of a lack of due diligence that the
movant did not learn of the evidence sooner; (3) the evidence is not cumulative;
and (4) the evidence is so material that it probably would produce a different result
if a new trial were granted. AND there was material act of inappropriate conduct or
misconduct by the jury that caused probable injury to Movant.

The conduct outlined in the affidavits indicate conduct that conflicts with the
Court’s instructions on how jurors should perform their duties. The Jury considered
evidence outside the record in violation of TRCP 226 to include but not limited to
specialized knowledge and sharing of personal knowledge and experience in
violation of their oath. Statements of fact and opinion were made by the jurors.

20
Personal experiences in similar scenarios are statements of facts. That nature and
conduct had material impact on at least three of the jurors.

There was a material misunderstanding of the law by the jurors and burden of proof.
Their affidavits indicate a shift of the burden of proof onto Mr. Perez.

The jurors felt pressured by the bailiff to come to a decision. At one juncture they
said they were ready to render verdict, then one juror became very upset, and the
jury requested that he have a break to get a breath. The bailiff erroneously denied
their request to break and did not inform the Court until AFTER the verdict.

The Jury submitted several questions during the deliberations. One question clearly
indicated that they required additional information. Caselaw does indicate that the
time during deliberations where the misconduct occurs is relevant. The note to the
Court indicated that the misconduct occurred during a crucial time of deliberations.
There was evidence of changes in votes of the jury during deliberations as mirrored
the signing of the jury charge which controverted the number of juries who agreed
with the verdict when polled. There was a conflict in jury’s answers and jury poll
not evident until after the filing of the jury charge. The jury charge and jury poll do
not conform. The jury reached a verdict after 5:00 p.m. and the attorneys were not
given a copy of the jury charge after the verdict during the jury poll. In addition,
the poll fails to show whether the same jurors agreed on their answers to each
question. The Court failed to notice the discrepancy between the jury poll and jury
charge. The proper action at that time would have been to require the jury to retire
for further deliberations or rebuke pursuant to TRCP 294[.]

The Court notes that the ability of both parties to obtain unadulterated affidavits
from the juries was tainted by the witness tampering, obstruction and
misrepresentation of the legal issues and proceedings by individuals representing
themselves falsely as investigators by third parties. This intrusion into the legal
process not only erodes the level of trust the public has in the judicial system but
impedes the administration of justice.

In sum, the trial court identified six grounds that it deemed to constitute misconduct, which we

briefly categorize below:

• Improper consideration of specialized knowledge and personal experiences by jurors
during deliberations;
• Confusion regarding the jury charge;
• A discrepancy between the jury charge and the jury poll;
• Juror pressure, including alleged pressure by both the bailiff and fellow jurors to reach a
verdict;
• Denial by the bailiff of a requested break during deliberations;

21
• Allegations of post-trial witness tampering.
The jurors’ consideration of specialized knowledge and personal experiences, their

confusion regarding the jury charge, and the discrepancy between the jury charge and the jury poll

do not, in and of themselves, constitute grounds for which a new trial is legally appropriate and

are therefore facially invalid bases to support the grant of a new trial.

As discussed above, the Texas Rules of Civil Procedure and the Texas Rules of Evidence

expressly prohibit jurors from later testifying about matters or statements that occurred during jury

deliberations. See Tex. R. Civ. P. 327(b); Tex. R. Evid. 606(b). Accordingly, allegations that jurors

discussed specialized knowledge and personal experiences during deliberations does not rise to

the level of outside influence, as we consider these mental processes and statements made during

the course of deliberations. Such discussions are considered part of a juror’s mental processes and

internal reasoning—neither of which qualify as an “outside influence” and therefore cannot

destroy a jury verdict. See Soliz, 779 S.W.2d at 932 (“Although this violates the trial court’s

instructions and we do not approve of this behavior, a juror’s injection of his own personal

experiences, knowledge or expertise is a matter which emanates from inside the jury and will not

be considered an ‘outside influence’ upon the jury.”); Sproles Motor Freight Lines, Inc. v. Long,

168 S.W.2d 642, 644 (Tex. 1943) (“[I]t is never permissible to allow a juror to preserve or destroy

his verdict by testifying to mental processes by which he reached the same.”); see also Thompson

v. Copeland, 289 S.W.2d 312, 315 (Tex. App.—Austin 1956, writ ref’d n.r.e.) (finding the mental

processes by which a juror reached a verdict may not be shown either to preserve or destroy such

verdict.). The same is true of the trial court’s finding that the jury misunderstood the law and

burden of proof. More specifically, at the new-trial hearing, counsel for Father argued that “the

jurors were confused by the jury charge.” However, as the Supreme Court has made clear, “[i]t is

22
not misconduct to misinterpret or misunderstand the court’s charge.” Stephens County Museum,

Inc. v. Swenson, 517 S.W.2d 257, 260 (Tex. 1974). Accordingly, juror discussions of their mental

processes during deliberations and confusion regarding the jury charge cannot legally serve as a

basis for granting a new trial under established Texas law.

Likewise, a discrepancy between the number of jurors who signed the charge and the

number of jurors who orally confirmed their verdict when polled—so long as the requisite majority

is maintained—does not in itself constitute a reason for which a new trial is legally appropriate.

Ten jurors signed the charge, while 11 jurors orally confirmed the verdict as their individual

decision when polled in open court. Rule 292(a) of the Texas Rules of Civil Procedure provides

that a verdict may be rendered by the concurrence of at least ten members of an original jury of

twelve. Tex. R. Civ. P. 292(a). This discrepancy, therefore, cannot invalidate the verdict or warrant

a new trial. See Branham v. Brown, 925 S.W.2d 365, 368 (Tex. App.—Houston [1st Dist.] 1996,

no pet.) (“Thus, after a verdict is returned and is officially received by the court and the jury is

discharged, it is not permissible to thereafter establish jury misconduct and impeach the verdict by

presenting evidence that the verdict was not unanimous or that a nonunanimous verdict was

returned by different ‘shifting’ majorities.”).

As to the remaining grounds of alleged misconduct, juror and bailiff misconduct and

witness tampering may, in certain instances, constitute grounds that legally warrant a new trial.

And we find the new-trial order to be facially valid on these grounds because it “describe[d] the

evidence or circumstances it observed to reach its conclusion [that] misconduct occurred.” In re

Thibodeaux, No. 09-20-00008-CV, 2020 WL 1465985, at *3 (Tex. App.—Beaumont Mar. 26,

2020, orig. proceeding) (per curiam) (mem. op.) (“On the other hand, should the trial court grant

the motion [for new trial] based on the plaintiffs’ allegations of jury misconduct, the trial court

23
must describe the evidence or circumstances it observed to reach its conclusion jury misconduct

occurred.”). Having found that the articulated grounds of juror and bailiff misconduct, as well as

witness tampering, satisfy the facial requirements, we now turn to a review of the merits to

determine whether the trial court’s rationale is supported by the record.

Regarding the alleged misconduct by the bailiff, the trial court’s order granting a new trial

stated:

The jurors felt pressured by the bailiff to come to a decision. At one juncture they
said they were ready to render verdict, then one juror became very upset, and the
jury requested that he have a break to get a breath. The bailiff erroneously denied
their request to break and did not inform the Court until AFTER the verdict.

At the new-trial hearing, the trial court admitted three juror affidavits into evidence. Of the

three affidavits, only one addressed the bailiff’s conduct, and the juror reflected two sources of

pressure: “I felt pressured by the bailiff as he kept asking if we were ready with the verdict. I also

felt I had to make a decision by 5:00 p.m. as most jurors were pressed for time and wanted to return

to work.”

However, a bailiff’s statement to the jury does not constitute improper outside influence or

misconduct where the communication is neutral and not the type of information that would

influence the verdict, even if it may encourage the jury to reach an agreement. See Rosell v. Central

West Motor Stages, Inc., 89 S.W.3d 643 (Tex. App.—Dallas 2002, pet. denied) (finding that a

statement to jurors that they probably would be required to deliberate another day if they did not

come to a decision was not misconduct). A new trial based on misconduct will be granted only

when the misconduct is proven, material, and probably resulted in harm to the complaining party.

Jackson, 24 S.W.3d at 372. The record here fails to establish any of those elements.

24
Furthermore, although the trial court found that the bailiff improperly denied a juror’s

request to take a break, there is no evidence in the record to support that finding. None of the juror

affidavits mention this conduct, nor was it raised or discussed at the new-trial hearing. No

witness—including any juror or the bailiff—testified at the hearing. Father was required to show

not only that this was misconduct, but that it was material and that it “reasonably appears from the

evidence both on the hearing of the motion and the trial of the case and from the record as a whole

that injury probably resulted to the complaining party.” Id. Assuming the denial of a break

constitutes misconduct, there is no evidence that such conduct occurred, was material, or that it

probably caused harm to Father. See id. Accordingly, the trial court abused its discretion by

granting a new trial on this basis.

The final ground identified by the trial court in its new-trial order was what it characterized

as “witness tampering, obstruction and misrepresentation of the legal issues and proceedings by

individuals representing themselves falsely as investigators by third parties,” which the trial court

found tainted the parties’ ability to obtain unadulterated juror affidavits. In support, one juror

affidavit stated that after trial, the juror was contacted by an individual named Samuel Carrejo.

According to the affidavit, Carrejo left a voicemail identifying himself as an investigator and

asking to speak about the case. The juror declared in his affidavit that he did not know Carrejo and

did not speak to him. Accordingly, there was no evidence that this post-trial contact influenced the

juror’s verdict or altered the outcome of deliberations.

As the complaining party, Father bore the burden to prove the alleged misconduct (1)

occurred; (2) was material; and (3) probably caused injury. In re Thibodeaux, 2020 WL 7756073,

at *5 (“The complaining party bears the burden to prove all three elements before the trial court

may grant a new trial.”). “Whether misconduct occurred and caused injury are questions of fact

25
for the trial court.” Id. An evidentiary hearing in this context is therefore required because “a trial

judge ruling on a motion for new trial based on affidavits of juror misconduct alone cannot perform

the critical function of assessing the credibility of the affiants, who are making serious charges

about the manner in which their fellow jurors have discharged their duties.” In re Zimmer, Inc.,

451 S.W.3d 893, 901 (Tex. App.—Dallas 2014, orig. proceeding). As such, “[w]hen the ground

of a motion for new trial, supported by affidavit, is misconduct of the jury . . . the court shall hear

evidence thereof from the jury or others in open court[.]” Tex. R. Civ. P. 327(a). Accordingly,

when, as here, a party files a motion for new trial supported by affidavits but presents no live

evidence at the hearing, that party fails to prove the alleged misconduct, and the trial court cannot

grant a new trial based on that conduct. See In re Thibodeaux, 2020 WL 7756073, at *5; In re

Zimmer, Inc., 451 S.W.3d at 902 (“[A] trial court may properly deny a motion for new trial when

a party alleging jury misconduct relies only on affidavits and fails to request a hearing on his

motion and offer live testimony proving misconduct.”); see, e.g., McNutt v. Qualls, 433 S.W.2d

521, 524 (Tex. App.—Dallas 1968, no writ) (trial court did not err in denying motion for new trial

where complaining party offered only affidavits). Because no evidence, apart from the affidavits,

was presented at the hearing on the motion for new trial, we conclude the trial court abused its

discretion in setting aside the jury’s verdict on these grounds. In re Zimmer, Inc., 451 S.W.3d at

902 (“We conclude the trial court abused its discretion in granting [a] new trial based only on

affidavit evidence of juror misconduct.”).

Aunt and Uncle’s second issue is sustained.

26
IV. CONCLUSION

We conditionally grant mandamus relief and direct the trial court to vacate its new-trial

order, reinstate the verdict, and proceed in the normal course with the post-trial stages of litigation.

We are confident the trial court will comply, and the writ will issue only if it does not.

MARIA SALAS MENDOZA, Chief Justice

September 15, 2025

Before Salas Mendoza, C.J., Palafox, J., and Rodriguez, C.J. (Ret.)
Rodriguez, C.J. (Ret.) (sitting by assignment)

27