nonexclusive factors in Texas

2025We also consider the evidence of the following nonexclusive factors that the factfinder may apply in determining the child’s best interest: • the child’s desires; • the child’s emotional and physical needs now and in the future; • the emotional and physical danger to the child now and in the future; • the parental abilities of the individuals seeking custody; • the programs available to assist these individuals to promote the child’s best interest; • the plans for the child by these individuals or by the agency seeking custody; • the stability of the home or proposed placement; • the parent’s

2024In reviewing a best-interest finding, we examine the record for the evidence that addressed the various, non-exclusive factors relevant to a child’s best interest against the nonexclusive factors the Texas 28In re H.R.M., 209 S.W.3d at 108 . 29See In re J.F.C., 96 S.W.3d at 266 . 30Id. at 267. 23 Supreme Court identified in Holley v. Adams. 31 Yet the factors set out in 3 0 F Holley aren’t exclusive, and the evidence in the record tied to the factfinder’s decision-making process in reaching its best-interest finding need not include evidence that addressed all nine Holley factors. 32 3 1 F 31S

2025We also consider the evidence of the following nonexclusive factors that the factfinder may apply in determining the child’s best interest: • the child’s desires; • the child’s emotional and physical needs now and in the future; • the emotional and physical danger to the child now and in the future; • the parental abilities of the individuals seeking custody; • the programs available to assist these individuals to promote the child’s best interest; • the plans for the child by these individuals or by the agency seeking custody; • the stability of the home or proposed placement; • the parent’s

2023We also consider the evidence in light of the following nonexclusive factors that the factfinder may apply in determining the child’s best interest: • the child’s desires; • the child’s emotional and physical needs now and in the future; • the emotional and physical danger to the child now and in the future; • the parental abilities of the individuals seeking custody; • the programs available to assist these individuals to promote the child’s best interest; • the plans for the child by these individuals or by the agency seeking custody; • the stability of the home or proposed placement; • the

2024When reviewing whether a trial court clearly abused its discretion in denying a motion for continuance premised on the need for time to conduct additional discovery, a reviewing court considers the following nonexclusive factors: “the length of time the case has been on file, the materiality and purpose of the discovery sought, and whether the party seeking the continuance has exercised due diligence to obtain the discovery sought.” Joe, 145 S.W.3d at 161 . -9- 04-23-00721-CV Berlanga filed his traditional motion for summary judgment on March 20, 2023.

2016Additionally, appellate courts consider “the following nonexclusive factors when deciding whether a trial court abused its discretion in denying a motion for continuance seeking additional time to conduct discovery: the length of time the case has been on file, the materiality and purpose of the discovery sought, and whether the party seeking the continuance has exercised due diligence to obtain the discovery sought.” –6– Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004).

2018See id. (citing Davis, 547 U.S. at 822 , 126 S. Ct. at 2274–75); Wilson v. State, 296 S.W.3d 140, 146 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d).

2009See id. (citing Davis , 547 U.S. at 822 , 126 S. Ct. at 2274–75).

2025We also consider the evidence of the following nonexclusive factors that the factfinder may apply in determining the child’s best interest: • the child’s desires; • the child’s emotional and physical needs now and in the future; • the emotional and physical danger to the child now and in the future; • the parental abilities of the individuals seeking custody; • the programs available to assist these individuals to promote the child’s best interest; • the plans for the child by these individuals or by the agency seeking custody; • the stability of the home or proposed placement; • the parent’s

2023We also consider the evidence in light of the following nonexclusive factors that the factfinder may apply in determining the child’s best interest: • the child’s desires; • the child’s emotional and physical needs now and in the future; • the emotional and physical danger to the child now and in the future; • the parental abilities of the individuals seeking custody; • the programs available to assist these individuals to promote the child’s best interest; • the plans for the child by these individuals or by the agency seeking custody; • the stability of the home or proposed placement; • the

2023To determine whether a trial court abused its discretion, we consider the following nonexclusive factors: (1) “the length of time the case has been on file,” (2) “the materiality and purpose of the discovery sought,” and (3) “whether the party seeking the continuance has exercised due diligence to obtain the discovery sought.” Id.

2016See BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 800 (Tex. 2002) (Denying motion for continuance of special appearance hearing and concluding seven months was “ample time” for discovery); see also Piazza v. Cinemark, USA, Inc., 179 S.W.3d 213, 216 (Tex. App.—Eastland 2005, pet. denied) (affirming summary judgment for defendant and concluding eighteen months was “more than ample time to conduct discovery”); see also McClure v. Attebury, 20 S.W.3d 722, 730 (Tex. App.—Amarillo 1999, no pet.) (affirming no-evidence summary judgment for defendant where plaintiff had seven months for disco

2021Davis, 547 U.S. at 826–27; Martinez v. State, 236 S.W.3d 361, 371 (Tex. App.—Fort Worth 2007, pet. dism’d, untimely filed). 24 Whether a statement is testimonial is a question of law.

2018See id. (citing Davis, 547 U.S. at 822 , 126 S. Ct. at 2274–75); Wilson v. State, 296 S.W.3d 140, 146 (Tex. App.—Houston [14th Dist.] 2009, pet. ref’d).

2016The Law There is a strong presumption that keeping a child with a parent is in the child’s best interest.31 We review the entire record to determine the child’s best interest.32 The same evidence may be probative of both the 29 In re G.H., No. 02-14-00310-CV, 2015 WL 1262627 , at *2 (Tex. App.— Fort Worth Mar. 19, 2015, no pet.) (mem. op.) (citation and internal quotation marks omitted). 30 See J.P.B., 180 S.W.3d at 573 . 31 In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). 32 In re E.C.R., 402 S.W.3d 239, 250 (Tex. 2013). 16 subsection (1) ground and best interest.33 Nonexclusive factors that the

2016Best Interest There is a strong presumption that keeping a child with a parent is in the child’s best interest.16 We review the entire record to determine the child’s best interest.17 The same evidence may be probative of both the subsection (1) ground and best interest.18 Nonexclusive factors that the trier of fact in a termination case may also use in determining the best interest of the child include 16 In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). 17 In re E.C.R., 402 S.W.3d 239, 250 (Tex. 2013). 18 Id. at 249 ; C.H., 89 S.W.3d at 28 . 15 (A) the desires of the child; (B) the emotional and

2016See Neil v. Biggers, 409 U.S. 188, 199-200 (1972).

2015See Ibarra, 11 S.W.2d at 195 (citing Neil v. Biggers, 409 U.S. 188, 199-200 , 93 S. Ct. 375, 382 , 34 L.

2009BMC Software, 83 S.W.3d at 800 (diligence and length of time on file); Tenneco Inc., 925 S.W.2d at 647 (materiality and purpose); Nat’l Union Fire Ins.

2009BMC Software, 83 S.W.3d at 800 (diligence and length of time on file); Tenneco Inc., 925 S.W.2d at 647 (materiality and purpose); Nat’l Union Fire Ins.

2021McInnis v. Mallia, 261 S.W.3d 197, 201 (Tex. App.—Houston [14th Dist.] 2008, no pet.).

2019Id.; McInnes v. Malia, 261 S.W.3d 197, 201 (Tex. App.—Houston [14th Dist.] 2008, no pet.).

2020Whirlpool Corp. v. Camacho, 298 S.W.3d 631, 638 (Tex. 2009).

2020Whirlpool Corp. v. Camacho, 298 S.W.3d 631, 638 (Tex. 2009).

2019Rosales, 841 S.W.2d at 374 (quoting Ex parte Windham, 634 S.W.2d 718, 720 (Tex. Crim.

2016Id. (quoting Ex parte Windham, 634 S.W.2d 718, 720 (Tex.Crim.App.1982) (en banc)).

2016Best Interest There is a strong presumption that keeping a child with a parent is in the child’s best interest.16 We review the entire record to determine the child’s best interest.17 The same evidence may be probative of both the subsection (1) ground and best interest.18 Nonexclusive factors that the trier of fact in a termination case may also use in determining the best interest of the child include 16 In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). 17 In re E.C.R., 402 S.W.3d 239, 250 (Tex. 2013). 18 Id. at 249 ; C.H., 89 S.W.3d at 28 . 15 (A) the desires of the child; (B) the emotional and

2016Best Interest There is a strong presumption that keeping a child with a parent is in the child’s best interest.16 We review the entire record to determine the child’s best interest.17 The same evidence may be probative of both the subsection (1) ground and best interest.18 Nonexclusive factors that the trier of fact in a termination case may also use in determining the best interest of the child include 16 In re R.R., 209 S.W.3d 112, 116 (Tex. 2006). 17 In re E.C.R., 402 S.W.3d 239, 250 (Tex. 2013). 18 Id. at 249 ; C.H., 89 S.W.3d at 28 . 15 (A) the desires of the child; (B) the emotional and

2020Moore v. State, 143 S.W.3d 305 , 312–13 (Tex. App.—Waco 2004, pet. ref’d) (adapting Theus factors to cases in which witness subject to impeachment with prior convictions is not the defendant); see Theus, 845 S.W.2d at 880 (establishing nonexclusive list of factors courts consider when defendant is witness being impeached with evidence of prior conviction).

2020Id.

2024“In making this determination, the following nonexclusive factors are considered: the character of the alleged error and how it might be considered in connection with other evidence; the nature of the evidence supporting the verdict; the existence and degree of additional evidence indicating guilt; whether the State emphasized the complained-of error; the trial court’s instructions; the theory of the case; and, [sic] relevant voir dire.” Cook, 665 S.W.3d at 599; Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim.

2024“In making this determination, the following nonexclusive factors are considered: the character of the alleged error and how it might be considered in connection with other evidence; the nature of the evidence supporting the verdict; the existence and degree of additional evidence indicating guilt; whether the State emphasized the complained-of error; the trial court’s instructions; the theory of the case; and, [sic] relevant voir dire.” Cook, 665 S.W.3d at 599; Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim.

2023“Although the court need not divide the community estate equally, a disproportionate division must be supported by some reasonable basis.” Smith v. Smith, 143 S.W.3d 206, 214 (Tex. App.—Waco 2004, no pet.). 18 This court has previously cataloged the factors that a trial court may consider in making its division: Nonexclusive factors that the trial court may consider include “the spouses’ capacities and abilities, benefits [that] the party not at fault would have derived from continuation of the marriage, business opportunities, education, relative physical conditions, relative financial condit

2020Nonexclusive factors that the trial court may consider in dividing the community estate include “the spouses’ capacities and abilities, benefits which the party not at fault would have derived from continuation of the marriage, business opportunities, education, relative physical conditions, relative financial condition and obligations, disparity of ages, size of separate estates, and the nature of the property.” Murff v. Murff, 615 S.W.2d 696, 699 (Tex. 1981).

2019Code Ann. § 27.009 (a)(1). 16 El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 762 (Tex. 2012). 17 Rohrmoos, 2019 WL 1873428 , at *20. 18 See id. at *20 . 19 Id. at *22 . 8 evidence that is adequate to address the five factors outlined above, trial courts may presume the multiplication step of the analysis has produced a figure that reflects a presumptively reasonable fee.21 After completing the multiplication step of the analysis, the factfinder must then determine whether evidence of other considerations overcomes the presumption of reasonableness and requires adjustment to determine a reasonable

2019We review a trial court’s award of attorney’s fees using an abuse-of-discretion standard. 26 In applying that standard, an appellate court must determine whether the trial court acted arbitrarily without reference to any guiding principles.27 In conducting our review, we agree with the Fort Worth Court’s statement that “[i]n the proper exercise of its discretion, a trial judge is obliged to do more than simply act as a rubber-stamp, accepting carte blanche the amount appearing on the bill.”28 Here, KBMT’s evidence includes the billing records that the attorneys who 24 Rohrmoos, at * 21 (quotin

2023Tri-Stem, Ltd. v. City of Houston, 566 S.W.3d 789, 799 (Tex. App.—Houston [14th Dist.] 2018, pet. denied).

2022Tri-Stem, Ltd. v. City of Houston, 566 S.W.3d 789, 799 (Tex. App.—Houston [14th Dist.] 2018, pet. denied).

2016Ibarra v. State, 11 S.W.3d 189, 195 (Tex. Crim.

2008Ibarra, 11 S.W.3d at 195 ; Webb, 760 S.W.2d at 269 .

2023See id. at 855 ; Wright, 7 S.W.3d at 151–52.

2017Gonzales v. State, 369 S.W.3d 851 , 854–55 (Tex. Crim.

2023State v. Mechler, 153 S.W.3d 435, 440 (Tex. Crim.

2011Id. at 440 ; Montgomery v. State, 810 S.W.2d 372, 389-90 (Tex.Crim.App.1990).

2024In reviewing a best-interest finding, we examine the record for the evidence that addressed the various, non-exclusive factors relevant to a child’s best interest against the nonexclusive factors the Texas 28In re H.R.M., 209 S.W.3d at 108 . 29See In re J.F.C., 96 S.W.3d at 266 . 30Id. at 267. 23 Supreme Court identified in Holley v. Adams. 31 Yet the factors set out in 3 0 F Holley aren’t exclusive, and the evidence in the record tied to the factfinder’s decision-making process in reaching its best-interest finding need not include evidence that addressed all nine Holley factors. 32 3 1 F 31S

2013App. P. 47.1; A.V., 113 S.W.3d at 362 ; In re K.W., 335 S.W.3d 767 , 769 (Tex. App.—Texarkana 2011, no pet.). 9 In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). 3 child.10 If, 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 in the truth of its finding, then the evidence is factually insufficient.11 There is a strong presumption that keeping a child with a parent is in the child’s best interest.12 Prompt and permanent pl

2023See id. at 855 ; Wright, 7 S.W.3d at 151–52.

2006Wright , 7 S.W.3d at 151-52; see Terry , 392 U.S. at 21-22 , 88 S. Ct. at 1880 ; Wright v. State , 18 S.W.3d 245, 247 (Tex. App.—Austin 2000, pet. ref’d).