non-exclusive factors in Texas

2025In reviewing a parent’s challenge to a best interest finding and when considering the non-exclusive factors outlined in Holley v. Adams, “courts focus on the best interest of the child, not the best interest of the parent.” In the Int. of H.M.R.J., No. 09-22-00171-CV, 2022 Tex. App. LEXIS 8471 , at *26 (Tex. App.— Beaumont Nov. 17, 2022, no pet.) (mem. op.) (citation omitted); see Holley v. 19 Adams, 544 S.W.2d 367 , 371–72 (Tex. 1976).

2025In reviewing a parent’s challenge to a best interest finding and when considering the non-exclusive factors outlined in Holley v. Adams, “courts focus on the best interest of the child, not the best interest of the parent.” In re H.M.R.J., No. 09-22-00171-CV, 2022 WL 17001955 , at *9 (Tex. App.—Beaumont Nov. 17, 2022, no pet.) (mem. op.) (citation omitted); see Holley v. Adams, 544 S.W.2d 367 , 371– 72 (Tex. 1976).

2025A rule 403 inquiry generally requires a court to balance the following non-exclusive factors: “(1) how probative the evidence is[;] (2) the potential of the evidence to impress the jury in some irrational, but nevertheless indelible way; (3) the time the proponent needs to develop the evidence; and (4) the proponent’s need for the evidence.” Colone v. State, 573 S.W.3d 249, 266 (Tex. Crim.

2024Thus, a Rule 403 inquiry generally requires a court to balance the following non- exclusive factors: “(1) how probative the evidence is[;] (2) the potential of the 11 evidence to impress the jury in some irrational, but nevertheless indelible way; (3) the time the proponent needs to develop the evidence; and (4) the proponent’s need for the evidence.” Colone v. State, 573 S.W.3d 249, 266 (Tex. Crim.

2025See Murff, 615 S.W.2d at 698 ; Villalpando, 480 S.W.3d at 807 .

2022See Murff, 615 S.W.2d at 698 ; Villalpando v. Villalpando, 480 S.W.3d 801, 807 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (citation omitted).

2013Madison, 241 S.W.3d at 155 ; Fuqua, 29 S.W.3d at 145 ; see Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004) (considering the following non-exclusive factors when deciding whether the trial court abused its discretion in denying a motion for continuance seeking additional time to conduct discovery: length of time the case has been on file; materiality and purpose of discovery sought; and whether the party seeking the continuance exercised due diligence to obtain the discovery sought).

2013Madison, 241 S.W.3d at 155 ; Fuqua, 29 S.W.3d at 145 ; see Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex.2004) (considering the following non-exclusive factors when deciding whether the trial court abused its discretion in denying a motion for continuance seeking additional *264 time to conduct discovery: length of time the case has been on file; materiality and purpose of discovery sought; and whether the party seeking the continuance exercised due diligence to obtain the discovery sought).

2023See In re E.C.R., 402 S.W.3d 239 , 249 & n.9 (Tex. 2013).

2020To determine whether termination is in a child’s best interest, we review the entire record, In re E.C.R., 402 S.W.3d 239, 250 (Tex. 2013), and consider the non-exclusive factors set out in Holley v. Adams: (1) the children’s wishes; (2) the children’s present and future emotional and physical needs; (3) any emotional and physical danger to the children, now and in the future; (4) the 15 parental abilities of the person seeking custody; (5) the programs available to assist these individuals in promoting the best interest of the children; (6) the plans for the children by the individual or agen

2023The non-exclusive factors that may establish an affirmative link between a defendant and the substance are: “(1) the defendant’s presence when a search is conducted; (2) whether the contraband was in plain view; (3) the defendant’s proximity to and the accessibility of the narcotic; (4) whether the defendant was under the influence of narcotics when arrested; (5) whether the defendant possessed other contraband or narcotics when arrested; (6) whether the defendant attempted to flee; (7) whether the defendant made furtive gestures; (8) whether there was an odor of contraband; (9) whether other

2023The non-exclusive factors that may establish an affirmative link between a defendant and the substance are: “(1) the defendant’s presence when a search is conducted; (2) whether the contraband was in plain view; (3) the defendant’s proximity to and the accessibility of the narcotic; (4) whether the defendant was under the influence of narcotics when arrested; (5) whether the defendant possessed other contraband or narcotics when arrested; (6) whether the defendant attempted to flee; (7) whether the defendant made furtive gestures; (8) whether there was an odor of contraband; (9) whether other

2023See In re A.J.M., No. 10-14-00284- CV, 2016 WL 936869 , at *3 (Tex. App.—Waco Mar. 10, 2016, no pet.) (mem. op.); see also In re Doe 2, 19 S.W.3d 278 , 282 n.20 (Tex. 2000) (recognizing that intermediate appellate courts use Holley factors to ascertain best interest of child in conservatorship cases).

2023See In re A.J.M., No. 10-14-00284-CV, 2016 WL 936869 , at *3 (Tex. App.—Waco Mar. 10, 2016, no pet.) (mem. op.); see also In re Doe 2, 19 S.W.3d 278 , 282 n.20 (Tex. 2000) (recognizing that intermediate appellate courts use Holley factors to ascertain best interest of child in conservatorship cases).

2009The rule 403 balancing test requires the evaluation of the following non-exclusive factors: “(1) how probative the evidence is; (2) the potential of the evidence to impress the jury in some irrational, but nevertheless indelible way; (3) the time the proponent needs to develop the evidence; and (4) the proponent’s need for the evidence.”- Shuffield, 189 S.W.3d at 787 (citing Montgomery v. State, 810 S.W.2d 372, 389-90 (Tex.Crim.App. 1991) (op. on reh’g)).

2009The rule 403 balancing test requires the evaluation of the following non-exclusive factors: "(1) how probative the evidence is; (2) the potential of the evidence to impress the jury in some irrational, but nevertheless indelible way; (3) the time the proponent needs to develop the evidence; and (4) the proponent's need for the evidence." Shuffield , 189 S.W.3d at 787 (citing Montgomery v. State , 810 S.W.2d 372, 389-90 (Tex. Crim.

2023See In re C.H., 89 S.W.3d at 27 .

2023See In re C.H., 89 S.W.3d at 27 .

2024See Robinson, 923 S.W.2d at 557 . 35 Rachal testified that he does not necessarily assess mold with an eye to future litigation, thus arguably describing a non-judicial use of his expertise.

2013In assessing reliability under Robinson , the trial court may consider the following non-exclusive factors: (1) the extent to which the theory has been or can be tested; (2) the extent to which the technique relies upon the subjective interpretation of the expert[ ]; (3) whether the theory has been subjected to peer review and/or publication; (4) the technique’s potential rate of error; (5) whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community; and (6) the non-judicial uses which have been made of the theory or technique. 923 S.W.2

2014Id. at 588 .

2012Id. at 588 .

2026“Non-exclusive factors that may be considered in determining lost earning capacity include evidence of past earnings, the plaintiff's stamina, efficiency, and ability to work with pain, and the plaintiff’s work-life expectancy.” Id.

2024Big Bird Tree Servs. v. Gallegos, 365 S.W.3d 173, 178 (Tex. App.—Dallas 2012, pet. denied); Perez v. Arredondo, 452 S.W.3d 847, 862 (Tex. App.—San Antonio 2014, no pet.); Tagle, 155 S.W.3d at 519 .

2023In re A.C., 560 S.W.3d 624, 631 (Tex. 2018). 11 In assessing whether the evidence is sufficient to prove that termination is in the best interest of a child, we may consider the non-exclusive factors discussed in Holley v. Adams, 544 S.W.2d 367 , 371–72 (1976).

2022In re A.C., 560 S.W.3d 624, 631 (Tex. 2018). 11 In assessing whether the evidence is sufficient to prove that termination is in the best interest of a child, we may consider the non-exclusive factors discussed in Holley v. Adams, 544 S.W.2d 367 , 371–72 (1976).

2018We are to consider the following non-exclusive factors: “(1) the probative value of the evidence; (2) the potential to impress the jury in some irrational, yet indelible, way; (3) the time needed to develop the evidence; and (4) the proponent’s need for the evidence.” Prible v. State, 175 S.W.3d 724, 733 (Tex. Crim.

2016A Rule 403 analysis ‘ includes the following non-exclusive factors: “(1) the probative value of the evidence; (2) the potential to impress the jury in some irrational, yet indelible, way; (3) the time needed to develop the evidence; and (4) the proponent’s need for the evidence.” Prible, 175 S.W.3d at 733 .

2025See Cogar v. State, No. 09-19- 00342-CR, 2020 Tex. App. LEXIS 7831 , at **8-9 (Tex. App.—Beaumont Sept. 30, 2020, no pet.) (mem. op., not designated for publication); Dixon v. State, 918 S.W.2d 678, 681 (Tex. App.—Beaumont 1996, no pet.); see also Black v. State, 411 S.W.3d 25, 29 (Tex. App.—Houston [14th Dist.] 2013, no pet.).

2020See Evans, 202 S.W.3d at 162 n.12; Black v. State, 411 S.W.3d 25, 29 (Tex. App.—Houston [14th Dist.] 2013, no pet.).

2019Murff, 615 S.W.2d at 698-99 ; see Garcia v. Garcia, 170 S.W.3d 644, 653 (Tex. App.—El Paso 2005, no pet.).

2011Murff, 615 S.W.2d at 698-99 ; see Garcia v. Garcia, 170 S.W.3d 644, 653 (Tex. App.—El Paso 2005, no pet.).

2026CODE § 263.307(a); see also In re B.J.C., 495 S.W.3d 29, 39 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (noting child’s need for permanence through establishment of stable, permanent home is paramount consideration in best interest determination). 25 To determine whether parental termination is in a child’s best interest, courts may consider the following non-exclusive factors: (1) the desires of the child; (2) the present and future physical and emotional needs of the child; (3) the present and future emotional and physical danger to the child; (4) the parental abilities of the persons see

2026CODE § 263.307(a); see also In re B.J.C., 495 S.W.3d 29, 39 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (noting child’s need for permanence through establishment of stable, permanent home is paramount consideration in best interest determination). 25 To determine whether parental termination is in a child’s best interest, courts may consider the following non-exclusive factors: (1) the desires of the child; (2) the present and future physical and emotional needs of the child; (3) the present and future emotional and physical danger to the child; (4) the parental abilities of the persons see

2010Prior to his testimony before the jury, M.P.A.'s trial counsel, Bobby Barina, conducted a voir dire examination and asked a series of questions relevant to the non-exclusive factors bearing on the reliability of scientific evidence identified by the court of criminal appeals in Kelly v. State , 824 S.W.2d 568, 573 (Tex. Crim.

2010Prior to his testimony before the jury, M.P.A.’s trial counsel, Bobby Barina, conducted a voir dire examination and asked a series of questions relevant to the non-exclusive factors bearing on the reliability of scientific evidence identified by the court of criminal appeals in Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim.

2022Barker v. Wingo, 407 U.S. 514 , 530–32 (1972); see Carney, 573 S.W.2d at 26 .

2011Carney, 573 S.W.2d at 26 -27 (citing Barker v. Wingo, 407 U.S. 514, 530 , 92 S.Ct. 2182 , 33 L.Ed.2d 101 (1972)); see also Cantu v. State, 253 S.W.3d 273 , 280 n. 16 (Tex.Crim.App.2008) (although right to speedy trial under Texas Constitution exists independently of Sixth Amendment guarantee, both claims are analyzed using Barker factors).

2010BMC Software , 83 S.W.3d at 800 (addressing the diligence and length of time on file factors); Tenneco Inc. v. Enter.

2010BMC Software, 83 S.W.3d at 800 (addressing the diligence and length of time on file factors); Tenneco Inc. v. Enter.

2007Keo , 76 S.W.3d at 734 (citing Gammill v. Jack Williams Chevrolet, Inc. , 972 S.W.2d 713, 720 (Tex. 1998)).

2001Sanchez, 997 S.W.2d at 590 ; see Gammill, 972 S.W.2d at 720 ; Robinson, 923 S.W.2d at 557 . 5 The trial court’s discretion extends to determining which of the Daubert factors reasonably measures whether an expert’s opinion is reliable, and whether other factors might apply.

2024See Davis, 547 U.S. at 826–28; Vinson, 252 S.W.3d at 339 .

2024Applying the non-exclusive factors above and viewing the evidence objectively, we conclude that Boyd’s statements in the 9-1-1 call were made “under 41 circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.” See Davis, 547 U.S. at 822 , 826–28; Vinson, 252 S.W.3d at 339 .

2024Id. at 323–24 (modified to delete “reckless misconduct” from the sixth factor per Lewis, 219 S.W.3d at 337–371); see also Martinez, 560 S.W.3d at 697 n.8 (citing cases modifying the sixth Wheeler factor in light of Lewis).

2016See Ex parte Wheeler, 203 S.W.3d at 323-24 ; Ex parte Masonheimer, 220 S.W.3d at 506 .

2024To determine whether the probative value of the evidence substantially outweighs its prejudicial effect, the trial court should consider the following non- exclusive factors: “(1) the impeachment value of the prior crime; (2) the temporal proximity of the past crime relative to the charged offense and the witness’s 15 subsequent criminal history; (3) the similarity between the past crime and the charged offense; (4) the importance of the defendant’s testimony; and (5) the importance of the credibility issue.” Cavitt, 507 S.W.3d at 257–58; see also Theus, 845 S.W.2d at 880–81.

2015Although this Court has stated in Dale v. State, 90 S.W.3d. 826 (Tex. App.— San Antonio 2002, pet ref’d), “in instances in which remoteness is an issue, we look exclusively to the strictures of Rule 609(b), not to the Theus factors,” Appellant contends that the non-exclusive factors outlined in Theus v. State, 845 S.W.2d 874 (Tex. Crim.

2018Corbin, 85 S. W.3d at 277 . h.

2018Corbin v. State, 85 S.W.3d 272, 277 (Tex. Crim.

2023The non-exclusive factors that may establish an affirmative link between a defendant and the substance are: “(1) the defendant’s presence when a search is conducted; (2) whether the contraband was in plain view; (3) the defendant’s proximity to and the accessibility of the narcotic; (4) whether the defendant was under the influence of narcotics when arrested; (5) whether the defendant possessed other contraband or narcotics when arrested; (6) whether the defendant attempted to flee; (7) whether the defendant made furtive gestures; (8) whether there was an odor of contraband; (9) whether other

2023The non-exclusive factors that may establish an affirmative link between a defendant and the substance are: “(1) the defendant’s presence when a search is conducted; (2) whether the contraband was in plain view; (3) the defendant’s proximity to and the accessibility of the narcotic; (4) whether the defendant was under the influence of narcotics when arrested; (5) whether the defendant possessed other contraband or narcotics when arrested; (6) whether the defendant attempted to flee; (7) whether the defendant made furtive gestures; (8) whether there was an odor of contraband; (9) whether other