386 F.Supp.2d 893 (2005)
Elizabeth TEAGUE as next friend of C.R.T., Plaintiff,
v.
TEXAS CITY INDEPENDENT SCHOOL DISTRICT, Defendant.
No. CIV.A. G-04-558.
United States District Court, S.D. Texas, Galveston Division.
August 17, 2005.
*894 Jack D. Ewing, Jr., The Ewing Law Firm, Texas City, TX, for Plaintiff.
Jeffrey L. Rogers, Clay T. Grover, Feldman & Rogers, Houston, TX, for Defendant.

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
KENT, District Judge.
This case arises out of a sexual assault by another student against C.R.T. at Texas City High School. Now before the Court is the Motion for Summary Judgment by Texas City Independent School District ("Defendant"). For the reasons given below, Defendant's Motion for Summary Judgment is GRANTED.
I. Background and Procedural History
Elizabeth Teague ("Plaintiff"), the step-mother of C.R.T., alleges in her Complaint that another student at Texas City High School pushed C.R.T., an 18-year-old with Down's Syndrome, into the boys' restroom where he sexually assaulted her. She then alleges that school officials forced C.R.T. to remove her clothing as part of their investigation even though Plaintiff had not arrived at the school. Plaintiff states that Defendant is liable under 42 U.S.C. § 1983 for failure to supervise and properly train the staff, leading to the assault on C.R.T., and also for using excessive force in demanding that C.R.T. remove her clothing.
On December 7, 2004, the Court denied Defendant's Motion to Dismiss. At that time, the Court had to take the alleged facts as true. Defendant's summary judgment evidence presents a vastly different picture. According to Defendant, C.R.T.'s teacher began looking for her immediately after the tardy bell rang and C.R.T. had not appeared in class. The girls' and handicapped students' restrooms were empty, and a boy answered that he was using the boys' room. After searching the special education classrooms for several minutes, the teacher went back to the boys' restroom, thinking that C.R.T. might be in there. She knocked on the door, and C.R.T. ran out and into the girls' restroom. The teacher found another special education student in the boys' room. The teachers and staff who saw C.R.T. immediately after this said that she appeared unharmed and calm, except that she knew that she had been caught somewhere that she should not have been. She was taken to a staff member's office for questioning, and she described the sexual activities in which she and the boy had engaged. No staff member threatened her or raised their voice to her. She asked to go to the restroom, and a staff member recommended *895 that her female teacher go with her to see if she could observe any blood or other sign of physical harm. This teacher had previously helped C.R.T. in the restroom with hygiene issues, so she did not believe that C.R.T. would feel uncomfortable with her presence. The teacher observed C.R.T.'s panties when C.R.T. pulled them down to use the toilet, and they appeared clean and dry. The teacher did not touch C.R.T. or order her to remove any clothing. When Plaintiff arrived, she was visibly upset, at which time C.R.T. also became upset and started crying for the first time. Several teachers and administrators swore affidavits or gave depositions supporting these facts. (Def.'s Exs. A-C; Pl.'s Exs. A-B.) The small portion of Plaintiff's deposition testimony included with Plaintiff's Response supports her version of the story, but that is the only evidence on her side. (Pl.'s Ex. H.) Plaintiff took depositions from all the teachers and staff members present, but Plaintiff only included those sections of the depositions dealing with locks on the bathroom doors, hallway monitoring, and other matters; Plaintiff did not include any deposition testimony from these witnesses about the central events of the case.
II. Summary Judgment Standard
Summary judgment is appropriate if no genuine issue of material fact exists, and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). When one party moves for summary judgment, the nonmoving party must set forth specific facts showing that there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Id. at 252, 106 S.Ct. at 2512. The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. See Anderson, 477 U.S. at 247-48, 106 S.Ct. at 2510.
Nevertheless, if the evidence is such that a reasonable fact-finder could find in favor of the nonmoving party, summary judgment should not be granted. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Determining credibility, weighing evidence, and drawing reasonable inferences are left to the trier of fact. See Anderson, 477 U.S. at 255, 106 S.Ct. at 2513.
III. Analysis
42 U.S.C. § 1983 creates a civil remedy for those who have been deprived of their federal rights under color of law. The plaintiff must show a violation of a constitutional right or a right created by federal law and that the violation was committed by a person acting under color of state law. See Doe v. Dallas Indep. Sch. Dist., 153 F.3d 211, 215 (5th Cir.1998).
A. Failure to Supervise
Plaintiff's first claim is that Defendant failed to supervise the students properly and/or failed to train the teachers and staff properly, and this led to the assault on C.R.T. by the other student. Even if the state actor failed to take some action, the state actor is only liable for the actions of a third party if there is a special relationship between the victim and the state actor. See DeShaney v. Winnebago County Dep't. of Soc. Servs., 489 U.S. 189, 198-200, 109 S.Ct. 998, 1004-05, 103 L.Ed.2d 249 (1989); Walton v. Alexander, 44 F.3d 1297 (5th Cir.1995). In the Order Denying Defendant's Motion to Dismiss, the Court found *896 that a special relationship might exist between C.R.T. and Defendant. At that time, though, the Court relied entirely on the representations of Plaintiff in her Complaint, which portrayed a severely traumatized special-education student forced to undergo an intrusive search. Because of the egregious nature of the claims, the Court was reluctant to dismiss Plaintiff's claims without giving her an opportunity to engage in discovery and further development of the facts.
Now, though, it appears that the events were remarkably benign, at least with regard to Defendant's activities. Plaintiff has produced only three pages of her deposition in which she describes what C.R.T. told her to support her sensational version of the facts. Plaintiff has admitted that C.R.T. was 18 at the time and not subject to compulsory attendance laws. C.R.T.'s school records show that the teachers and staff believed that she could understand and follow school rules. They did not believe that she required one-on-one supervision to make it safely from one special education classroom to another special education classroom 30 feet away. One staff member testified that C.R.T. functions at the level of a 13-year-old.[1] (Chapa Dep. at 6.) Plaintiff has not produced any evidence to contradict these facts.
While the Court still believes that, in some circumstances, a special relationship may exist between a school district and a special education student, these circumstances do not rise to that level. The Court's prior decision as to the existence of a special relationship, which was based on a distorted picture of the events, is therefore VACATED, and Defendant's Motion for Summary Judgment on Plaintiff's failure to supervise claim is GRANTED.
B. Excessive Force
Plaintiff's second claim is that Defendant used excessive force in demanding that C.R.T. remove her clothing in front of a teacher without her parent present. The constitutional right to be free from excessive force during a detention or search by a state actor is clearly established. See Tarver v. City of Edna, 410 F.3d 745, 753-54 (5th Cir.2005). To show that a violation of this right occurred, Plaintiff must show that C.R.T. suffered an injury "which resulted directly and only from a use of force that was clearly excessive" and that the excessiveness was "clearly unreasonable." Id. at 751.
However, to succeed against a governmental entity such as Defendant, Plaintiff must also show that an official policy or custom caused the injury. See Monell v. Dep't of Soc. Servs. of New York, 436 U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978). Defendant is not automatically liable for the torts of its employees absent such an official policy or custom. See id. As explained in the Court's prior Order, only the policy decisions of officials with final policymaking authority can subject a school district to liability. See Doe v. Dallas I.S.D., 153 F.3d at 216. Here, the final policymaking authority was the Board of Trustees. See id. It was not the teachers, principal, or other staff members at Texas City High School. Defendant cannot therefore be *897 held liable for any "policy" developed by those actors.
Even after a specific invitation to do so in the Court's prior Order, Plaintiff has not alleged the existence of an official policy or custom requiring students to submit to strip-searches without the consent of their parents. In fact, Defendant has presented its official policy against unreasonable and coerced searches. (Def.'s Ex. E-5.) The policy sets out the circumstances in which a search is reasonable, and it states that other searches may not be conducted without the consent of the student. Consent may not be obtained by coercion.
Defendant cannot be held liable in these circumstances. Not only has Plaintiff failed to produce evidence of an official policy causing the injury, she has not refuted Defendant's evidence that a contrary policy exists. For that reason, Plaintiff's claim fails as a matter of law.
Finally, Defendant's evidence casts serious doubt on Plaintiff's contention that Defendant's employees used any force against C.R.T., whether physical or psychological, and also on Plaintiff's contention that C.R.T. suffered any real injury because of the search. A decision as to the true facts would require a weighing of credibility, which the Court cannot do on a Motion for Summary Judgment. The case nonetheless appears far less shocking than Plaintiff's Complaint makes out. Defendant's Motion for Summary Judgment on Plaintiff's excessive force claim is GRANTED.
IV. Conclusion
Defendant's Motion for Summary Judgment is GRANTED because there is no genuine question of material fact as to the existence of a special relationship between C.R.T. and Defendant or as to the existence of a policy allowing unreasonable strip-searches of students. Plaintiff's claims are hereby DISMISSED WITH PREJUDICE.
In the future, the Court admonishes Plaintiff and her counsel to consider the implications of giving a highly-sensationalized rendition of the facts in a Complaint that later appears to be groundless. Had the Court denied this Motion, C.R.T. would likely have had to testify about events that were at the very least embarrassing, if not traumatic, and submit to a thorough and grueling cross-examination. The Court cannot imagine that this would be a positive experience for any person, but especially not for a person with limited mental capabilities.
Also, in going through the evidence in the case, the Court discovered that C.R.T.'s parents failed to attend C.R.T.'s Admission, Review, and Dismissal Committee meeting in March 2004 even after being notified three times by the school, instead leaving C.R.T. to fend for herself. (Def.'s Ex. A-1 at 43.) If Plaintiff is truly concerned about C.R.T.'s well-being and if C.R.T. is so incapable of taking care of herself, Plaintiff should make an effort to attend such important meetings on C.R.T.'s behalf. This behavior does not comport with the Court's perception of good parenting and advocacy.
Each Party is to bear its own taxable costs, expenses, and attorney's fees incurred herein to date. A Final Judgment will be issued contemporaneously with this Order.
IT IS SO ORDERED.
NOTES
[1]  The Fifth Circuit held that a special relationship did not exist between a school district and a thirteen-year-old student who was raped by a janitor. See Doe v. Hillsboro Indep. Sch. Dist., 113 F.3d 1412, 1415 (5th Cir.1997). Therefore, to the extent that age reflects maturity and judgment, the age of thirteen-whether functional or chronological-is not enough under Fifth Circuit precedent to create a special relationship, even in conjunction with compulsory attendance laws.


UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 99-4880

PAUL DAVID HOUSE,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Fox, District Judge.
(CR-96-174-BR)

Submitted: May 11, 2000

Decided: May 19, 2000

Before MURNAGHAN, LUTTIG, and TRAXLER, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Edwin C. Walker, Acting Federal Public Defender, Stephen C. Gor-
don, Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Janice McKenzie Cole, United States Attorney, Anne M.
Hayes, Assistant United States Attorney, Thomas B. Murphy, Assis-
tant United States Attorney, Raleigh, North Carolina, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Paul David House appeals the district court's revocation of his
supervised release term and probation sentence, and its consecutive
sentences based on House's admitted violations of the conditions of
his supervised release and probation. House raises three issues on
appeal: (1) the district court erred in imposing consecutive sentences;
(2) the district judge failed to comply with the provisions of 18 U.S.C.
§ 3584(b); and (3) the district court violated 18 U.S.C. § 3553(c), by
failing to state its reasons for the sentence imposed. Because House
failed to object to the sentence or the manner in which it was
imposed, we review his claims for plain error. See United States v.
Olano, 507 U.S. 725, 731 (1993).

Our review of the record reveals that the district court made find-
ings of fact regarding each violation of supervised release and proba-
tion, and that it considered the applicable guidelines provisions,* as
well as House's recidivist tendencies in imposing sentence. Accord-
ingly, we find that the district court was well within its discretion to
impose consecutive sentences on House's violations of his terms of
supervised release and probation, see United States v. Johnson, 138
F.3d 115, 119 (4th Cir. 1998), and further find that there was no plain
error in the district court's compliance with the applicable statutory
provisions. See id.; United States v. Davis, 53 F.3d 638, 642 (4th Cir.
1995). We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the Court
and argument would not aid the decisional process.

AFFIRMED
_________________________________________________________________

*See Chapter 7 of the U.S. Sentencing Guidelines.

                    2


                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT

                            No. 06-1838

JESSE LOWELL SATTERFIELD,

                                              Plaintiff - Appellant,

          versus

UNITED STATES DEPARTMENT OF LABOR; MINE SAFETY
AND HEALTH ADMINISTRATION,

                                             Defendants - Appellees.

Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley, Chief
District Judge. (1:03-cv-00165-IMK)

Submitted:   January 12, 2007             Decided:   January 30, 2007

Before WILKINSON and NIEMEYER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Jesse Lowell Satterfield, Appellant Pro Se. Daniel W. Dickinson,
Jr., OFFICE OF THE UNITED STATES ATTORNEY, Wheeling, West Virginia,
for Appellees.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

           Jesse Lowell Satterfield appeals the district court’s

orders granting the Appellees’ motion for summary judgment and

denying   Satterfield’s   Fed.   R.   Civ.   P.   59(e)   motions   in   this

employment discrimination case.       We have reviewed the record and

find no reversible error.    Accordingly, we affirm for the reasons

stated by the district court.     See Satterfield v. Chao, No. 1:03-

cv-00165-IMK (N.D. W. Va. Apr. 25 and June 13, 2006).          We dispense

with oral argument because the facts and legal contentions are

adequately presented in the materials before the court and argument

would not aid the decisional process.

                                                                    AFFIRMED

                                  - 2 -


2 So.3d 939 (2006)
VICK ANTHONY GEORGE
v.
STATE.
No. CR-05-1793.
Court of Criminal Appeals of Alabama.
October 27, 2006.
Decision of the Alabama Court of Criminal Appeal without opinion. Affirmed.


653 S.E.2d 507 (2007)
FRIEDMAN
v.
REGIONS BANK.
No. A07A1137.
Court of Appeals of Georgia.
October 25, 2007.
*508 David U. Crosby, Decatur, for Appellant.
White, Choate & Watkins, John Thomas Mroczko, for Appellee.
PHIPPS, Judge.
Martin Friedman appeals a confirmation of a sale of real property foreclosed on by Regions Bank under power of sale contained in a deed to secure debt. Because Friedman has failed to show that he was deprived of any protection contemplated by the applicable confirmation statute,[1] we affirm.
The material facts are not in dispute. Friedman gave Regions Bank a deed to secure debt on property located in Bartow County and thereafter defaulted on the underlying note. After notice and advertisement, the bank acquired the property in a nonjudicial foreclosure sale held in July 2006. Preparing to seek a deficiency judgment against Friedman, pursuant to OCGA § 44-14-161,[2] the bank reported the sale to the Bartow County Superior Court and applied for confirmation and approval of the sale. At a hearing thereupon in "Civil Action File No. 06-CV-1881," the superior court found that the sale had not been conducted on the advertised date. Therefore, the court refused *509 to confirm the sale, verbally set aside the sale and ordered that the property be resold.
Regions Bank then commenced anew foreclosure proceedings upon the property. After notice and advertisement, Regions Bank acquired the property at a foreclosure sale held in October 2006. Again preparing to seek a deficiency judgment against Friedman, pursuant to OCGA § 44-14-161, the bank reported the sale to the Bartow County Superior Court and applied for confirmation and approval of the sale.
At the hearing thereupon in "Civil Action File No. 06-CV-3097," Friedman objected on two grounds. First, he argued that the October sale could not be confirmed because it was premature. He pointed out that no written order had been entered denying confirmation of the July sale, setting aside that sale, and ordering a resale of the property. Second, Friedman argued that the property was sold for less than its true market value. Upon representations of both sides, the court found no dispute that the superior court judge who had presided over the first confirmation hearing had refused to confirm the July sale and then verbally ordered it set aside and the property resold. The court ruled that, while an order should be prepared and filed "to close [the first] case out," the instant confirmation proceeding comprised "a new action" in which the bank could seek confirmation of the October sale. After hearing evidence regarding the market value of the property as of the October sale, the court confirmed the October sale.
Friedman contends on appeal that the superior court committed reversible error by confirming the October sale, arguing only that the sale was a nullity because no written order was entered denying confirmation of the July sale, setting aside that sale, and directing that the property be resold. He points out further that days after the July sale, the bank recorded a "Deed Under Power of Sale" in connection with that sale and argues that "until a written order was entered setting that sale aside, there was nothing for the [bank] to resell." Having given this contention a de novo review, we find it without merit.
"The only purpose of [OCGA § 44-14-161] is to subject the creditor's potential deficiency claim to the condition that the foreclosure sale under power be given judicial approval."[3] "Its purpose is to pass upon the notice, advertisement and regularity of the sale and to re-insure that the property was sold for a fair value. It provides debtors with formidable protection against gross deficiency judgments."[4]
Friedman does not assert that the notice or the advertisement underlying the October sale was deficient;[5] nor does he assert that the property was sold for a price other than its true market value.[6] He apparently complains that the October sale was irregular due to the status of the title of the property on the date of that sale. But this complaint falls outside the ambit of OCGA § 44-14-161. Confirmation proceedings brought under OCGA § 44-14-161 do not adjudicate title.[7] And even if title of the property was not clear on the date of the October sale, Friedman has not shown that, under the circumstances of this case, a cloud of title adversely affected any protection afforded him as debtor under OCGA § 44-14-161.[8]
Moreover, OCGA § 44-14-161 pertinently provides, "The court may order a resale of the property for good cause shown,"[9] but is silent on whether such order must be written *510 and filed. Friedman has cited no authority supporting his complaint that the confirmation of the October sale was error on the ground that no written order was entered upon the superior court's refusal to confirm the original sale and verbal orders that it was set aside and that the property be resold. And we find none. Rather, in Kong v. Shearson Lehman Hutton Mtg. Corp.,[10] where the superior court refused to confirm original sales, but instead "verbally set aside the original sales and ordered resales of the properties,"[11] this court reasoned that "the initial foreclosure sales were set aside, those sales were no longer binding, and the parties were returned to the posture they occupied prior to the initial sales."[12]
In this case, the parties acknowledged at the second confirmation hearing that the judge who presided over the first confirmation hearing had refused to confirm the July sale and verbally set aside that sale and ordered a resale of the property. Again, before this court, Friedman concedes, "[T]he judge in the first confirmation proceeding found the sale to be invalid and directed a resale." And there is no question that a foreclosure sale occurred thereafter on October 3, 2006. Although the real estate records of Bartow County contain a "Deed Under Power of Sale" between Friedman (as grantor) and Regions Bank (as grantee), dated and filed in July 2006, the county's real estate records also contain a "Deed Under Power of Sale" between the same parties, dated and filed in October 2006. In addition, Bartow County's real estate records contain an affidavit that was filed contemporaneously with the October "Deed Under Power of Sale," which affidavit explained that the October deed it accompanied was "for the purpose of correcting the previous filing of a similar Deed Under Power of Sale, because the foreclosure process had to commence anew pursuant to a Court Order in Civil Action File Number 06-CV-1881 of the Civil Records of Bartow County, Georgia."
Finally, Friedman seeks to nullify the confirmation of the October sale by invoking the rule that a judgment must be in writing, signed by the judge, and filed with the clerk in accordance with OCGA § 9-11-58 to be effective, irrespective of any oral announcement by the trial court.[13] But Friedman's reliance upon this rule is misplaced. The superior court at the second confirmation hearing correctly determined that, while a final order should be entered "to close [the first] case out," the confirmation proceedings in connection with the October sale  the only pertinent sale here  nevertheless comprised "a new action."[14] And with respect to such proceedings, the superior court signed a final order and duly filed it with the clerk. Friedman has not shown how the absence of a final order in connection with the July confirmation proceedings deprived him of any protection afforded him by OCGA § 44-14-161 as debtor in the October sale.[15]
Judgment affirmed.
JOHNSON, P.J., and MIKELL, J., concur.
NOTES
[1]  OCGA § 44-14-161.
[2]  See generally Commercial Exchange Bank v. Johnson, 197 Ga.App. 529, 530(1), 398 S.E.2d 817 (1990) ("OCGA § 44-14-161 requires a confirmation as a condition precedent to an action for a deficiency judgment.") (citation omitted).
[3]  Vlass v. Security Pacific Nat. Bank, 263 Ga. 296, 297(1), 430 S.E.2d 732 (1993) (citation and punctuation omitted); see Ameribank, N.A. v. Quattlebaum, 269 Ga. 857, 858, 505 S.E.2d 476 (1998); Wall v. Fed. Land Bank of Columbia, 240 Ga. 236, 237(1), 240 S.E.2d 76 (1977).
[4]  Wall, supra; see Ameribank, N.A., supra; Vlass, supra.
[5]  See OCGA § 44-14-161(c).
[6]  See OCGA § 44-14-161(b).
[7]  Wall, supra; Dorsey v. Mancuso, 249 Ga.App. 259, 261, 547 S.E.2d 787 (2001).
[8]  See generally Kennedy v. Gwinnett Commercial Bank, 155 Ga.App. 327, 330, 270 S.E.2d 867 (1980) (regarding extent of protection afforded debtor by confirmation statute).
[9]  OCGA § 44-14-161(c).
[10]  211 Ga.App. 93, 438 S.E.2d 132 (1993).
[11]  Id. at 94, 438 S.E.2d 132.
[12]  Id. at 95, 438 S.E.2d 132.
[13]  Friedman cites Bloodworth v. Thompson, 230 Ga. 628, 198 S.E.2d 293 (1973); Zeitman v. McBrayer, 201 Ga.App. 767, 412 S.E.2d 287 (1991); Maroska v. Williams, 146 Ga.App. 130, 245 S.E.2d 470 (1978).
[14]  See generally Kong, supra at 94-96, 438 S.E.2d 132.
[15]  See generally Kennedy, supra (regarding extent of protection afforded debtor by confirmation statute).


     Case: 09-30148     Document: 00511013100          Page: 1    Date Filed: 01/26/2010

            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                          January 26, 2010

                                     No. 09-30148                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff - Appellee
v.

STEPHANIE R JONES

                                                   Defendant - Appellant

                   Appeal from the United States District Court
                      for the Western District of Louisiana
                           USDC No. 2:04-CR-20038-1

Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
        Stephanie R. Jones appeals the district court’s denial of her petition for
writ of error coram nobis. The appeal is DISMISSED, because Jones did not file
a timely notice of appeal.
                                              I.
        In 2005, Jones was convicted of theft of government property valued at
$1,000 or less, in violation of 18 U.S.C. § 641. She was sentenced to six months

        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
   Case: 09-30148    Document: 00511013100      Page: 2   Date Filed: 01/26/2010

                                  No. 09-30148

of imprisonment and a one-year term of supervised release. She completed her
prison term and began serving her term of supervised release on January 27,
2006. Her supervised release term was terminated by court order on September
27, 2006.
      On March 7, 2008, Jones filed a petition for writ of error coram nobis. The
district court denied the petition on March 24, 2008. On May 21, 2008, Jones
filed a motion for reconsideration, which the district court denied on June 6,
2008. About eight months later, on February 3, 2009, Jones filed a second
motion for reconsideration, which was denied by the district court on February
9. Jones filed her notice of appeal on February 20, 2009.
                                        II.
      A writ of coram nobis “is an extraordinary remedy available to a petitioner
no longer in custody who seeks to vacate a criminal conviction in circumstances
where the petitioner can demonstrate civil disabilities as a consequence of the
conviction, and that the challenged error is of sufficient magnitude to justify the
extraordinary relief.” Santos-Sanchez v. United States, 548 F.3d 327, 331 (5th
Cir. 2008) (quoting United States v. Esogbue, 357 F.3d 532, 534 (5th Cir. 2004)).
A coram nobis motion is a civil proceeding, subject to Federal Rule of Appellate
Procedure 4(a)(1)(B)’s 60-day appeal period for civil cases to which the United
States is a party. United States v. Cooper, 876 F.2d 1192, 1194 (5th Cir. 1989),
abrogated on other grounds by Smith v. Barry, 502 U.S. 244 (1992).
      Jones argues that the district court erred by denying her petition for writ
of error coram nobis. “This Court must examine the basis of its jurisdiction, on
its own motion, if necessary.” Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987).
“[T]he timely filing of a notice of appeal in a civil case is a jurisdictional
requirement [and courts have] . . . no authority to create equitable exceptions to
jurisdictional requirements.” Bowles v. Russell, 551 U.S. 205, 214 (2007).

                                        2
   Case: 09-30148    Document: 00511013100      Page: 3   Date Filed: 01/26/2010

                                  No. 09-30148

      The district court denied Jones’s petition for writ of error coram nobis on
March 24, 2008. Jones filed a motion for reconsideration on May 21, 2008.
Under the version of Federal Rule of Civil Procedure 59(e) and Federal Rule of
Appellate Procedure (4)(a)(4)(A) in effect at that time, Jones’s motion for
reconsideration was filed too late (more than ten days after the entry of
judgment) to toll the time for filing a notice of appeal until the district court
entered an order disposing of the motion. Even under the amended version of
those rules that took effect on December 1, 2009, the motion was filed too late
(more than 28 days after the entry of judgment) to toll the period for filing a
notice of appeal.   Accordingly, Jones’s notice of appeal, filed nearly eleven
months after the district court denied her petition, was untimely, and this court
does not have jurisdiction to consider her challenge to the district court’s denial
of her petition for coram nobis relief.
      Because Jones did not file a timely notice of appeal, her appeal is
DISMISSED for lack of jurisdiction. All pending motions are DENIED.

                                          3


                                 NO. 12-14-00171-CV

                         IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

                                                §       APPEAL FROM THE
IN THE INTEREST OF E. R.,
                                                §       COUNTY COURT AT LAW
A CHILD
                                                §       CHEROKEE COUNTY, TEXAS

                                 MEMORANDUM OPINION
       R.S. appeals the termination of her parental rights. In six issues, she challenges the order
of termination. We affirm.

                                         BACKGROUND
       R.S. is the mother of E.R., born November 23, 2006. R.R. is the father of E.R. and is not
a party to this appeal. On May 1, 2013, the Department of Family and Protective Services (the
Department) filed an original petition for protection of the child, for conservatorship, and for
termination of R.S.’s parental rights.   The Department was appointed temporary managing
conservator of the child, and R.S. was appointed temporary possessory conservator with limited
rights and duties.
       At the conclusion of the trial on the merits, the trial court found, by clear and convincing
evidence, that R.S. had engaged in one or more of the acts or omissions necessary to support
termination of her parental rights under subsections (D), (E), and (O) of Texas Family Code
Section 161.001(1). The trial court also found that termination of the parent-child relationship
between R.S. and E.R. was in the child’s best interest. Based on these findings, the trial court
ordered that the parent-child relationship between R.S. and E.R. be terminated. This appeal
followed.
                               TERMINATION OF PARENTAL RIGHTS
       Involuntary termination of parental rights embodies fundamental constitutional rights.
Vela v. Marywood, 17 S.W.3d 750, 759 (Tex. App.–Austin 2000), pet. denied per curiam, 53
S.W.3d 684 (Tex. 2001); In re J.J., 911 S.W.2d 437, 439 (Tex. App.–Texarkana 1995, writ
denied). Because a termination action ―permanently sunders‖ the bonds between a parent and
child, the proceedings must be strictly scrutinized. Wiley v. Spratlan, 543 S.W.2d 349, 352
(Tex. 1976); In re Shaw, 966 S.W.2d 174, 179 (Tex. App.–El Paso 1998, no pet.).
       Section 161.001 of the family code permits a court to order termination of parental rights
if two elements are established. TEX. FAM. CODE ANN. § 161.001 (West 2014); In re J.M.T., 39
S.W.3d 234, 237 (Tex. App.–Waco 1999, no pet.). First, the parent must have engaged in any
one of the acts or omissions itemized in the first subsection of the statute. TEX. FAM. CODE ANN.
§ 161.001(1) (West 2014); Green v. Tex. Dep’t of Protective & Regulatory Servs., 25 S.W.3d
213, 219 (Tex. App.–El Paso 2000, no pet.); In re J.M.T., 39 S.W.3d at 237.                   Second,
termination must be in the best interest of the child. TEX. FAM. CODE ANN. § 161.001(2) (West
2014); In re J.M.T., 39 S.W.3d at 237. Both elements must be established by clear and
convincing evidence, and proof of one element does not alleviate the petitioner’s burden of
proving the other. TEX. FAM. CODE ANN. § 161.001; Wiley, 543 S.W.2d at 351; In re J.M.T., 39
S.W.3d at 237.
       The clear and convincing standard for termination of parental rights is both
constitutionally and statutorily mandated. TEX. FAM. CODE ANN. § 161.001; In re J.J., 911
S.W.2d at 439. Clear and convincing evidence means ―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.‖ TEX. FAM. CODE ANN. § 101.007 (West 2014). The burden of proof is
upon the party seeking the deprivation of parental rights. In re J.M.T., 39 S.W.3d at 240.

                                       STANDARD OF REVIEW
       When confronted with both a legal and a factual sufficiency challenge, an appellate court
must first review the legal sufficiency of the evidence. Glover v. Tex. Gen. Indem. Co., 619
S.W.2d 400, 401 (Tex. 1981); In re M.D.S., 1 S.W.3d 190, 197 (Tex. App.–Amarillo 1999, no
pet.). In conducting a legal sufficiency review, we must look at all the evidence in the light most
favorable to the finding to determine whether a reasonable trier of fact could have formed a firm

                                                  2
belief or conviction that its findings were true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002).
We must assume that the fact finder settled disputed facts in favor of its finding if a reasonable
fact finder could do so and disregard all evidence that a reasonable fact finder could have
disbelieved or found incredible. Id.
       The appropriate standard for reviewing a factual sufficiency challenge to the termination
findings is whether the evidence is such that a fact finder could reasonably form a firm belief or
conviction about the truth of the petitioner’s allegations. In re C.H., 89 S.W.3d 17, 25 (Tex.
2002). In determining whether the fact finder has met this standard, an appellate court considers
all the evidence in the record, both that in support of and contrary to the trial court’s findings.
Id. at 27-29. Further, an appellate court should consider whether disputed evidence is such that a
reasonable fact finder could not have reconciled that disputed evidence in favor of its finding. In
re J.F.C., 96 S.W.3d at 266. The trier of fact is the exclusive judge of the credibility of the
witnesses and the weight to be given their testimony. Nordstrom v. Nordstrom, 965 S.W.2d
575, 580 (Tex. App.–Houston [1st Dist.] 1997, pet. denied).

                         TERMINATION UNDER SECTION 161.001(1)(E)
       In her third and fourth issues, R.S. argues that the evidence is legally and factually
insufficient to support a finding that she engaged in conduct, or knowingly placed the child with
persons who engaged in conduct, that endangered the child’s physical or emotional well being.
Applicable Law
       The court may order termination of the parent-child relationship if it finds by clear and
convincing evidence that the parent has 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. TEX. FAM. CODE ANN. § 161.001(1)(E) (West 2014). The specific danger to the child’s
well being need not be established as an independent proposition, but may instead be inferred
from parental misconduct. Tex. Dep’t of Human Svcs. v. Boyd, 727 S.W.2d 531, 533 (Tex.
1987); In re J.J., 911 S.W.2d at 440. Scienter is not required for an appellant’s own acts under
Section 161.001(1)(E), although it is required when a parent places her child with others who
engage in endangering acts. In re U.P., 105 S.W.3d 222, 236 (Tex. App.—Houston [14th Dist.]
2003, pet. denied). Finally, the need for permanence is a paramount consideration for the child’s

                                                3
present and future physical and emotional needs. In re N.K., 99 S.W.3d 295, 301 n.9 (Tex.
App.—Texarkana 2003, no pet.); In re M.D.S., 1 S.W.3d at 200.
       ―Endanger‖ means to expose to loss or injury or to jeopardize. Boyd, 727 S.W.2d at 533;
In re D.M., 58 S.W.3d 801, 811 (Tex. App.—Fort Worth 2001, no pet.). It is not necessary that
the conduct be directed at the child or that the child actually suffers injury. Boyd, 727 S.W.2d at
533; In re J.J., 911 S.W.2d at 440. Subsection (E) requires us to look at the parent’s conduct
alone, including actions, omissions, or the parent’s failure to act. In re D.J., 100 S.W.3d 658,
662 (Tex. App.—Dallas 2003, pet. denied); In re D.M., 58 S.W.3d at 811. Termination under
subsection (E) must be based on more than a single act or omission. In re D.M., 58 S.W.3d at
812; In re D.T., 34 S.W.3d 625, 634 (Tex. App.—Fort Worth 2000, pet. denied). A voluntary,
deliberate, and conscious ―course of conduct‖ by the parent that endangers the child’s physical
and emotional well being is required. In re D.M., 58 S.W.3d at 812; In re D.T., 34 S.W.3d at
634.
       A parent’s use of narcotics and its effect on her ability to parent may qualify as an
endangering course of conduct. In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009); see also In re
R.W., 129 S.W.3d 732, 739 (Tex. App.—Fort Worth 2004, pet. denied). Further, a parent’s
illegal drug use can support termination for endangerment because it exposes the child to the
possibility that the parent may be impaired or imprisoned. Melton v. Tex. Dep’t of Family &
Protective Svcs., No. 03-08-00168-CV, 2010 WL 668917, at *5 (Tex. App.—Austin Feb. 25,
2010, no pet.) (mem. op.). A parent’s repeated engagement in illegal drug activity or repeatedly
associating with known criminals after agreeing not to do so in a service plan for reunification
with her child may be considered in an analysis of whether clear and convincing proof exists of
voluntary, deliberate, and conscious conduct that endangered the well being of her child. See In
re T.N., 180 S.W.3d 376, 383 (Tex. App.—Amarillo 2005, no pet.).
       As a general rule, conduct that subjects a child to a life of uncertainty and instability
endangers the physical and emotional well being of a child. In re M.R.J.M., 280 S.W.3d 494,
503 (Tex. App.—Fort Worth 2009, no pet.); In re R.W., 129 S.W.3d at 739. Evidence of
criminal conduct, convictions, and imprisonment and its effect on a parent’s life and ability to
parent may establish an endangering course of conduct. In re S.M., 389 S.W.3d 483,492 (Tex.
App.–El Paso 2012, no pet.). Imprisonment alone does not constitute an endangering course of
conduct, but it is a fact properly considered on the endangerment issue. Id. (citing Boyd, 727

                                                4
S.W.2d at 533-34). Conduct that routinely subjects children to the probability that they will be
left alone because the parent is once again jailed, whether because of the continued violation of
supervisory conditions or because of a new offense growing out of a continued use of illegal
drugs, endangers both the physical and emotional well being of the children. See In re S.D., 980
S.W.2d 758, 763 (Tex. App.—San Antonio 1998, pet. denied).
The Evidence
       The initial investigation by the Department began on April 16, 2013, when the police
received reports of a prowler next door to R.S.’s residence. Troy Ansley, a sergeant with the
Alto Police Department, testified that he discovered R.S. and her paramour, H.W., sitting on the
front porch of her residence. He stated that there was an open beer container and a cup that
smelled of a fruit flavored alcohol on the porch. Ansley also noticed that H.W. was a minor and
exhibited signs of intoxication—bloodshot eyes, slurred speech, and an extremely scattered
thought process.
       It was apparent that R.S. was having a party, and Ansley discovered that, with one
exception, the individuals attending the party were between thirteen to twenty years old. Most of
them were holding alcoholic beverages, and all of them had been consuming alcohol. R.S.
explained that she did not expect minors to show up, but still allowed them to drink in her home.
She said that she was trying to be a ―cool mom.‖ Ansley described the house as being ―in
disarray‖ and ―extremely smoky,‖ ―like a fog‖ that filled up the entire kitchen and living room
area. Numerous containers of alcohol, including beer and hard liquor, were on the kitchen
counters. One of the minors, E.R.’s babysitter, told him that E.R. was sleeping in the back room.
The babysitter brought E.R. into the living room where Ansley noted that she was congested and
not breathing very well.
       Aaron Warren, a Department investigator, testified that he went to R.S.’s house the day
after the party. Neither R.S. nor E.R. was there. He eventually located E.R. at her maternal
grandmother’s house, and she appeared to be sick. The maternal grandmother had taken the
child to the emergency room. Warren testified that about fifteen or twenty minutes after he began
talking to E.R.’s maternal grandmother, R.S. and H.W. came ―flying‖ in the door. R.S. and
H.W. became belligerent and very upset after Warren introduced himself.          R.S. refused to
cooperate and would not allow him to go to her house as part of his investigation.

                                                5
        After a hearing, E.R. was removed from R.S.’s home and was eventually placed in foster
care. Christina Autry, a Department caseworker, testified that she was assigned to R.S.’s case on
April 30, 2013. R.S. tested positive for methamphetamines through a hair follicle test after a
hearing at the beginning of the case, but had approximately ten negative drug tests after that
time. R.S. did not attend any Narcotics Anonymous or Alcoholics Anonymous meetings after
August 2013 and did not complete her assessment with the East Texas Counsel on Alcoholism
and Drug Abuse (ETCADA). However, she successfully completed an intensive outpatient drug
treatment program. R.S. admitted having a drug problem and using drugs for about two months
before the hearing, but said she had abstained from drugs since that date. According to Warren,
E.R. stated that her mother, her minor brother, and her mother’s paramour, H.W., smoked
marijuana all the time and that R.S. smoked another ―funny smelling‖ thing. R.S. denied
smoking marijuana with H.W. and her older son at one point, and then admitted smoking
marijuana with her older son and smoking methamphetamine with H.W. Autry noted that R.S.
had not submitted to drug testing since February 19, 2014, because she was jailed in March
2014.
        R.S. completed a parenting class and consistently attended visitations with E.R.
However, she did not obtain and maintain a stable home and income. She had three jobs during
the course of the case, had poor attendance, and was fired from two of those jobs. R.S. found it
difficult to maintain a job along with the meetings and visitations required by her family service
plan even though she was diligent about finding work. She had lived in six different places since
April 2013, including with friends and in an apartment from which she was evicted. Eviction
proceedings were commenced against R.S. in February 2014, regarding her current apartment,
and later, her belongings were confiscated from that apartment.
        R.S. was requested not to associate with known criminals as part of her family service
plan and was ordered to have ―no contact‖ with H.W. pursuant to the temporary orders following
the adversary hearing and the family service plan. She was also told on ―numerous occasions‖
not to have contact with H.W. However, she did not comply.
        On two occasions, Autry went to R.S.’s apartment on an unannounced visit. On the first
visit, R.S. was not present, but a man was in her apartment to ―protect‖ it from another man who
was supposed to pick up his clothes that were outside the apartment door. That man identified
himself through an offender’s card, and said he had recently been released from prison and was

                                                6
on parole for a ―home invasion.‖ A criminal check revealed that he had a lengthy criminal
history, including two burglaries of a habitation, theft of a firearm, numerous misdemeanor
thefts, forgery of a financial instrument, assault, aggravated assault with a deadly weapon,
assault causing bodily injury to a family member, and prohibited weapons. He was currently on
parole until 2020.
       On the next unannounced visit, Autry discovered R.S. along with two other men in her
apartment. R.S. identified the first man as having a different surname than the one he gave
Autry. A criminal check on the correct surname revealed that he had several felony charges and
was currently serving ten years of community supervision. Autry also discovered a man hiding
in a bedroom closet. The man did not have any identification, but R.S. identified him as ―Billy.‖
After Autry was shown H.W.’s mugshot a few days later, she determined that ―Billy‖ was H.W.
       H.W. had a lengthy criminal history including an arrest for sexual assault, arrests for
numerous drug charges, arrests for other minor charges, and pending criminal charges. R.S.
admitted that H.W. was hiding in the closet because she knew he was not supposed to be in her
apartment. She knew E.R. would not be in any danger from H.W. because he ―explained‖ the
circumstances behind his arrest for sexual assault. But she also claimed not to have known about
the circumstances of the sexual assault incident until after E.R. was removed from her home.
R.S. and H.W. were arrested together for possession of a controlled substance, a third degree
felony, on March 11, 2014.
       When asked why she could not stay away from H.W. if that was the one thing standing in
the way of getting E.R. back, R.S. stated that they were ―friends.‖ She admitted that she and
H.W. had a sexual relationship until they were both jailed in March 2014. R.S. conceded that it
looked like she was choosing H.W. over her child. However, she stated that she would stay
away from all of the people who could injure E.R. or be a bad influence on her.
       Larry Wilburn, a licensed professional counselor, testified that he treated R.S. twice a
month from June 28, 2013, through February 2014. He explained that R.S. was unable to
successfully complete counseling because she did not meet the treatment goals. Her treatment
goals included setting boundaries so that she would not be around at-risk people who could put
her child at risk, to stay clean, to provide a safe and financially stable environment, and to
participate in services. He stated that R.S. recognized that she had a drug problem, that drug use
was not appropriate around children, and that the alcohol use in her home was inappropriate.

                                                7
Even though R.S. stayed clean, held a job, and participated in services, she had ongoing
problems with being around at-risk people and not complying with the rules. Wilburn stated that
R.S. did not demonstrate changes in her judgment, decision making, complying with the rules,
and being around positive people. For instance, he said, R.S. bought a necklace for her older son
that had a marijuana leaf on it. Wilburn was concerned because of R.S.’s history of substance
abuse and her judgment in buying the gift.
       Wilburn was also concerned because he had information that R.S. continued to be around
persons who used drugs and participated in criminal activities and, therefore, continued to be ―a
risk.‖ He discharged R.S. in February 2014 due to a lack of progress and her subsequent
confinement in jail. He did not believe that R.S. could provide permanency and stability for E.R.
at the time of trial. Wilburn testified that R.S. was at a ―medium to high risk‖ to children based
on her pattern of behavior as of February 2014. R.S. believed she had the ability to provide a
safe, nurturing environment for E.R. once she was released from jail. Autry and the CASA
volunteer recommended that R.S.’s parental rights to E.R. be terminated.
Conclusion
       Viewing the evidence in the light most favorable to the finding, the trial court could have
determined that R.S. allowed minors to drink alcohol in her house, had a drug problem, tested
positive for methamphetamine at the beginning of the case, smoked marijuana with her older
son, and smoked methamphetamine with her paramour, H.W. She also admitted that she was
currently in jail after being charged with possession of a controlled substance, a third degree
felony. Therefore, the trial court also could have found that R.S.’s actions exposed E.R. to the
possibility that R.S. may be impaired or imprisoned. See Melton, 2010 WL 668917, at *5.
       R.S. continued to have a relationship with H.W., a known criminal who had been charged
with sexual assault, even though she was ordered to have ―no contact‖ with him. She failed to
acknowledge that E.R. could be in danger from H.W. because he ―explained‖ the circumstances
behind his sexual assault arrest. H.W. was also arrested, along with R.S., for possession of a
controlled substance, which indicated that their relationship was ongoing. R.S. continued to
associate with other persons who participated in criminal activities, allowing them into her
house. She had a continuing problem with being around at-risk persons, demonstrating a lack of
judgment and a failure to comply with the rules. Because R.S. decided to continue a relationship
with H.W. and associate with other known criminals during the pendency of this case and after

                                                8
being ordered not to do so by the trial court and family service plan, the trial court could have
considered R.S.’s decisions in its finding that she engaged in conduct that endangered the child’s
physical or emotional well being. See In re T.N., 180 S.W.3d at 383.
       The evidence also demonstrated that R.S.’s home life was unstable because she was
unable to keep a steady home or job. She lived in at least six different places during the
pendency of the case and was evicted from at least two apartments. R.S. was also in jail at the
time of trial. The trial court could have found that R.S.’s unstable home life and possible
incarceration subjected E.R. to a life of uncertainty and instability that endangered her physical
and emotional well being. See In re M.R.J.M., 280 S.W.3d at 503; In re R.W., 129 S.W.3d at
739.
       R.S. stated that she believed she had the ability to provide a safe, nurturing environment
for E.R. once she was released from jail. She also had at least ten negative drug tests during the
pendency of the case. The evidence showed that R.S. tried to find work, and consistently
attended visitations with E.R. Although this evidence conflicts with the trial court’s findings, it
is not so significant that a reasonable trier of fact could not have reconciled this evidence in favor
of its finding and formed a firm belief or conviction that R.S. engaged in conduct, or knowingly
placed the child with persons who engaged in conduct, that endangered her physical or emotional
well being. Therefore, we hold that the evidence is legally and factually sufficient to support
termination of R.S.’s parental rights under Section 161.001(1)(E). Accordingly, we overrule
R.S.’s third and fourth issues.

                                             HEARSAY
       In her sixth issue, R.S. argues that the trial court erred by admitting the hearsay statement
of the child without conducting a hearing pursuant to Section 104.006 of the Texas Family Code,
and that error was harmful.
       A statement made by a child younger than twelve years that describes alleged abuse
against the child is admissible as evidence if, in a hearing conducted outside the presence of the
jury, the court finds that the time, content, and circumstances of the statement provide sufficient
indications of the statement’s reliability and the child testifies or is available to testify or the
court determines that the use of the statement in lieu of the child’s testimony is necessary to
protect the child’s welfare. See TEX. FAM. CODE ANN. 104.006 (West 2014). In other words, the

                                                  9
statute sets forth the requirements for the trial court to determine whether a child’s statement is
admissible through another witness in certain circumstances. See In re L.M., No. 10-11-00276-
CV, 2012 WL 1123898, at *2 (Tex. App.—Waco Apr. 4, 2012, pet. dism’d w.o.j.) (mem. op.).
At issue is an outcry statement that E.R. made. Investigator Warren testified that E.R. said her
mother, H.W., and R.S.’s older son smoked marijuana all the time and that her mother smoked
another ―funny smelling‖ thing.
         R.S. admits in her brief that, at trial, her counsel did not object to the mention of the
alleged outcry statement. Although she states that her lack of an objection ―does not relieve the
trial court of the mandatory requirement for a reliability hearing,‖ she does not cite any authority
to support her position. Further, the record does not reflect that the trial court was ever requested
to conduct a hearing pursuant to Section 104.006.
         As a predicate to presenting a complaint on appeal, the complaining party must have
preserved the error at trial by a proper request, objection, or motion stating the grounds for the
ruling that the party sought from the trial court with sufficient specificity to make the trial court
aware of the complaint, and then securing a ruling on the request, objection, or motion. See TEX.
R. APP. P. 33.1(a)(1)(A), (2). Thus, in order to preserve this complaint for appeal, R.S. was
required to present her request to the trial court and to obtain a ruling on that request. See In re
L.M., 2012 WL 1123898, at *2. She did not do so and, therefore, has waived this issue on
appeal. Accordingly, we overrule R.S.’s sixth issue.

                                                    DISPOSITION
         Having overruled R.S.’s third, fourth, and sixth issues, we affirm the judgment of the
trial court.1
                                                                        JAMES T. WORTHEN
                                                                           Chief Justice

Opinion delivered December 10, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

                                                    (PUBLISH)

         1
          Because we have concluded that the evidence is legally and factually sufficient to support termination of
R.S.’s parental rights under subsection (1)(E), we need not address R.S.’s first, second, and fifth issues regarding
subsections (1)(D) and (1)(O). See TEX. FAM. CODE ANN. § 161.001(1); TEX. R. APP. P. 47.1.

                                                          10
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                            JUDGMENT

                                         DECEMBER 10, 2014

                                          NO. 12-14-00171-CV

                             IN THE INTEREST OF E. R., A CHILD

                                Appeal from the County Court at Law
                      of Cherokee County, Texas (Tr.Ct.No. 2013-05-0334)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                    James T. Worthen, Chief Justice.
                    Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.


412 N.W.2d 556 (1987)
STATE of Iowa, Appellee,
v.
Helena Florence BURRELL, Appellant.
No. 86-681.
Supreme Court of Iowa.
September 23, 1987.
Robert A. Wright, Sr., and Dennis L. Eaton of Wright, Wright & Borseth, Des Moines, for appellant.
Thomas J. Miller, Atty. Gen., Christie J. Scase, Asst. Atty. Gen., James Smith, Co. Atty., and Ronald L. Wheeler, Asst. Co. Atty., for appellee.
Considered by HARRIS, P.J., and McGIVERIN, LARSON, SCHULTZ, and CARTER, JJ.
CARTER, Justice.
Defendant, Helena Florence Burrell, appeals from her conviction, following jury trial, of murder in the first degree. She contends that the district court erred in failing to grant her a new trial based on a claim of ineffective assistance of trial counsel. In her argument, she identifies several instances which she suggests show that her trial counsel inadequately prepared and presented her case. Our review of the record fails to convince us that defendant is entitled to relief on this claim. Consequently, we affirm the judgment of conviction.
Defendant's conviction arose from the fatal shooting of her brother, Finnis Jackson, on the evening of January 10, 1985. Evidence presented at the trial shows the following facts. Prior to the shooting defendant *557 and her brother had been together for most of that evening. They met at Brown Sugar's Lounge on East University Avenue in Des Moines at approximately 7:45 p.m. They left the lounge at 8:15 p.m. to visit their sister, Karlylou. Finnis and defendant remained at Karlylou's home only a short time and then proceeded to the residence of the Jordan brothers ostensibly for purposes of Finnis purchasing some drugs. Upon their arrival, a fight ensued between Finnis and one of the Jordan brothers which produced several abrasions on Finnis's face. There is some evidence that defendant was also involved in this altercation but apparently she received no discernible physical injuries.
After departing the Jordan brothers' residence, Finnis, with defendant's assistance, tried to obtain a shotgun from some friends named Newby for the purpose of doing harm to the Jordan brothers. The Newbys, however, refused to give Finnis the gun. Defendant and Finnis then returned to Brown Sugar's Lounge where Finnis entered and was given first aid by his girlfriend, Sherri Carter, who tended bar there.
Later in the evening Finnis and defendant engaged in a heated argument in the parking lot outside the lounge. Finnis delivered a series of blows to defendant's head and body, knocking her to the ground and producing visible abrasions on her face. A witness to this altercation indicated that Finnis kicked defendant at least two times while she was on the ground and then returned to the lounge.
After Finnis reentered the lounge, defendant, who was then in possession of a .22 caliber pistol, fired one or more shots into the air. She, too, then reentered the lounge with the weapon. At this time, Finnis and Sherri Carter were in the back room. Defendant requested that Sherri fix her a drink. Sherri testified that defendant appeared to be calm at the time. In response to this request, Sherri proceeded from the back room to a position behind the bar where she commenced mixing a drink for defendant. When Finnis also came out of the back room into the bar area, defendant shot him through the head. The shooting occurred at 11:10 p.m. This was approximately ten minutes after the fight in the parking lot had concluded. Finnis died a few hours later.
Defendant was charged with first-degree murder and was initially represented by an attorney associated with the Polk County Offender Advocate's Office. That attorney filed notice of a defense of justification and secured an examination of defendant by a clinical psychologist. Psychiatric reports on Finnis Jackson were obtained from a Veterans Administration Hospital. Counsel hoped to make use of these reports to show the victim's violent propensities. That attorney also prepared other family members to testify concerning Finnis's propensity for violence.
Defendant's trial was scheduled to commence on the morning of August 5, 1985. At that time, she expressed dissatisfaction with her representation by the Offender Advocate's Office and made arrangements with a different lawyer to represent her. As a result of the change of counsel, her trial was continued until September 30, 1985.
At defendant's trial, the State's case was developed largely through the testimony of Sherri Carter, the Newbys, and business patrons of the lounge who witnessed the events. Investigating police officers also testified concerning the crime scene, as viewed on their arrival, and their conversations with defendant. The defendant did not testify. The only witness called in her behalf was the clinical psychologist who had examined her.
The clinical psychologist testified without objection concerning defendant's version of the facts as related to the witness. Defendant told the witness that she and Finnis had quarreled over defendant's refusal to let Finnis use her pistol for the purpose of causing harm to the Jordan brothers. Defendant also told the witness that Finnis in his anger had severely beaten and kicked her shortly before the shooting. The psychologist testified that given these circumstances defendant's response was an emotional one and not one of deliberation and thought. A gun was utilized because it *558 was the weapon available to defendant for an immediate emotional response. The witness indicated that this opinion would not be altered if it was shown that defendant appeared calm upon her reentry into the lounge.
After the jury's verdict finding her guilty of first-degree murder, defendant again changed counsel. Her latest counsel prepared a motion for new trial, asserting that the quality of representation which defendant had received from her trial counsel fell below the standard guaranteed by the sixth amendment to the federal constitution. A hearing was held on this motion at which four witnesses testified: the clinical psychologist who testified at the trial, defendant's original trial counsel, counsel who represented defendant during the trial, and defendant.
Through this testimony, defendant's new counsel attempted to show that trial counsel had (1) inadequately prepared his expert witness; (2) failed to adequately examine grand jury transcripts in order to adequately cross-examine key witnesses, refresh their recollection, and impeach their testimony; and (3) failed to offer the testimony of two witnesses before the grand jury as substantive evidence in defendant's case in chief. The district court found no merit in any of these contentions. In combination, the trial record and the evidentiary record on the motion for new trial are sufficient to permit the review of these claims on direct appeal. In examining counsel's conduct, we review de novo the totality of relevant circumstances. State v. Risdal, 404 N.W.2d 130, 131 (Iowa 1987).
I. Alleged Failure to Properly Prepare Expert Witness.
Defendant in her motion for new trial urged that her trial counsel was ineffective with respect to preparation of the clinical psychologist who testified as an expert witness in her behalf. It was asserted in the motion and at the hearing held thereon that the witness was only questioned generally concerning the psychological effects of a "cooling-off period" following emotional trauma rather than being directly asked whether defendant had, in the witness's opinion, acted in self-defense. The record does not support these contentions.
Defendant's trial counsel questioned the expert witness as follows concerning the self-defense claim:
Q. A survival mechanism, putting it in the terms of this proceeding, would be a self-defense mechanism? A. Yes, I would say so.
Q. Given the circumstances previously presented, being struck and beat, if the individual felt, sensed, another attack, would their response generated by the suspicion or impending fear of that next attack be a result of the previous encounter immediately previous? A. Sure, they can be connected.
Q. In sort of a conclusion, let me capture this one carefully; I want to take some time on this. In our hypothetical, would the actions of the victim, for our purposes, which would be the defendant, could this be construed as the actions of one fearing for their own life? A. They could be construed that way.
Q. So then your ultimate opinion here is that the defendant defended herself from harm? A. I think we could postulate that, yes.
The record clearly shows defendant's trial counsel questioned the expert witness both hypothetically as to the psychological effects of trauma and specifically as to its potential effect on defendant's conduct in the present case. There is no merit to the claim of ineffective assistance with respect to preparation and examination of the expert witness.
II. Alleged Failure to Make Proper Use of Grand Jury Testimony in Cross-examination of Witnesses.
Defendant's most strenuous argument on appeal concerns the alleged failure of her trial counsel to make proper use of the grand jury testimony of several State witnesses for purposes of effective cross-examination. She urges that as a result of this omission she was denied the opportunity to present to the jury an accurate account *559 of the events that transpired on the evening of the shooting.
In describing the defense attorney's function, we have approved the following guideline:
The defense attorney's function consists, in large part, of the application of professional judgment to an infinite variety of decisions in the development and prosecution of the case. A determination whether any given act or omission by counsel amounted to ineffective assistance cannot be divorced from consideration of the peculiar facts and circumstances that influenced counsel's judgment. In this fact-laden atmosphere, categorical rules are not appropriate.
Schrier v. State, 347 N.W.2d 657, 661-62 (Iowa 1984) (quoting United States v. Decoster, 624 F.2d 196, 203 (D.C.Cir.1979)). Evaluating an allegation that assistance of counsel was ineffective involves a two-step process: first, it must be shown that the attorney failed to exercise customary skills and diligence that a reasonably competent attorney would perform under similar circumstances; then it must also be established that prejudice resulted sufficient to cast doubt on the integrity of the proceedings which led to the conviction. Taylor v. State, 352 N.W.2d 683, 685 (Iowa 1984).
The record reflects that, at the time defendant's trial was originally scheduled to commence, the State had not made the transcripts of grand jury testimony available to the offender advocate attorney who was representing her. That attorney believed that these materials would become available following the testimony of each witness as "Jencks-type" discovery. After defendant changed attorneys, the prosecutor, sometime during the week prior to the September 30 trial date, did permit defendant and her new counsel to examine the transcripts of grand jury testimony. These contained the testimony of twenty-two witnesses. They were not provided with copies but were assured that the transcripts would be available to them for use during the trial.
Prior to trial, defendant's counsel read the grand jury testimony of two witnesses, and defendant read the testimony of several other witnesses. The record does not reflect which witnesses these were. The record also reflects that the offender advocate attorney had taken discovery depositions of most of the key State witnesses and made transcripts of those depositions available to the attorney who succeeded in defendant's representation. The record does not reflect the extent to which defendant's counsel made use of these depositions in preparation for trial nor have the contents of these depositions been made a part of the record, either at trial or during the hearing on the motion for new trial. No argument is made on appeal concerning any alleged misuse of the depositions in the defense of the case.
With respect to improper use of the grand jury transcripts, defendant urges that certain witnesses testified far more vividly and in greater detail before the grand jury than at trial concerning the severity of the beating administered to her by the victim. She also asserts that the testimony of certain witnesses before the grand jury concerning her mental state at or subsequent to the time of the shooting differs substantially from their trial testimony.
One of the claims made is that two police officers testified before the grand jury concerning statements which defendant made to them on the evening of January 10, 1985, about the beating administered to her by the victim. Defendant contends that these officers were not questioned at trial about these statements. The record reflects that this contention is not entirely correct. One of these officers, James Bowersox, was questioned as follows at the trial by defendant's counsel:
Q. Was Miss Burrell crying? Was she silent? Was she in a daze? What was her, I guess, mental condition on your observation when you arrested her? A. She was weeping and obviously upset.
Q. She didn't say anything, did she? A. Yes. She did make several statements.
Q. Did she say anything? What did she say? A. When I had her handcuffed *560 and was taken to the car, she did state several times that she had been beaten by the victim.
Defendant also states that the testimony of David Bradley before the grand jury concerning the details of the beating she received was considerably more vivid and detailed than was his trial testimony on this subject. This contention is at least partially correct. Before the grand jury, David Bradley testified as to having a good view of the altercation between defendant and her brother. He described in detail how Finnis struck defendant in the side of the face knocking her to the ground and then kicked her "three or four times." At trial, this witness stated that his view of the attack was somewhat obstructed but that he saw Finnis strike defendant on the "upper part of her body" knocking her down and that Finnis then appeared to kick her "a couple of times." Upon further examination, he stated that defendant may have been kicked more than twice. David Bradley also testified before the grand jury that the dispute between defendant and Finnis, as discerned from their conversation, appeared to be over possession of a pistol. He did not testify as to the latter point at trial.
Defendant also asserts that her trial counsel was ineffective in not having read and made use of Sherri Carter's grand jury testimony in order to assure a more effective cross-examination. Specifically, she contends that the trial testimony of Sherri Carter permitted an inference to be drawn that defendant had not been beaten by Finnis Jackson but had instead obtained her physical injuries in the earlier altercation with the Jordan brothers. Sherri Carter's testimony both before the grand jury and at trial was that she had not witnessed the altercation in which Finnis Jackson struck and kicked defendant. However, she never disputed that it had occurred. As to whether defendant's observable facial injuries, which were depicted by photographs in evidence, were received at the hands of the Jordan brothers, Sherri Carter testified:
Q. Did that eye start swelling in the bar that night? A. I do not know. All I know is that after the shooting had happened her face was not like that.
Q. Do you think the police gave her a black eye? A. I don't know.
Q. She didn't complain that she was hurting? A. The only thing she said to me is that when they went to [the Jordan brothers] and Finnis had got jumped on that she had got hit too.
Q. But that wasn't the injury from that? A. No.
Defendant also asserts that Sherri Carter's testimony before the grand jury differed from her trial testimony with respect to defendant's mental state at the time of the shooting. We believe that these apparent discrepancies are capable of being resolved. Sherri Carter's testimony to the grand jury about defendant's apparent incoherent mental state referred to events immediately following the shooting. Her trial testimony concerning defendant's apparent calm demeanor referred to events immediately prior to the shooting.
When defendant's claims concerning the alleged ineffective use of the grand jury testimony are considered as a whole and measured by the two-pronged standard that must be applied in determining such claims, we conclude that she has failed to establish any basis for relief. Perhaps her counsel should have been more diligent in reviewing the transcripts of the grand jury testimony prior to trial. Arguably, had he done so, his cross-examination would have been more effective. As a consequence of a more effective cross-examination, defendant's theory of defense both with respect to the claim of justification and the negation of deliberation and premeditation might have been more forcefully presented. Counsel did not, however, fail to make a record upon which these claims could be presented to the jury. Notwithstanding the fact that a potential for a more effective presentation existed, we conclude that too many variables exist in this chain of *561 events to establish a constitutional deprivation under the sixth amendment.[1]
III. Other Claims of Ineffective Assistance of Counsel.
Defendant also claims ineffective assistance of counsel in regard to the failure to call family members (brothers and sisters of defendant and Finnis) to testify concerning Finnis's propensities for violence; failure to place in evidence hospital records confirming Finnis's propensities for violence; failure to seek the admission in evidence of the grand jury testimony of Katherine Mack, a witness not available for trial; and failure to seek admission in evidence of defendant's own testimony before the grand jury on the theory that she (having elected not to testify) was an unavailable witness. We find that none of these matters offers defendant any ground of relief from her conviction.
The use of character evidence to show the victim's propensities for violence, which has been suggested in defendant's argument, rests on the theory of "reasonable anticipation of danger" approved in State v. Wilson, 235 Iowa 738, 743, 17 N.W.2d 138, 142 (1945). Within the sound discretion of the trial court, evidence of this nature would have been admissible. We are not convinced, however, that had this evidence been utilized the result would have been altered. Finnis Jackson's propensities for violence had been shown by other evidence in the case, including direct evidence of a recent assault upon the defendant.
The suggested use of Katherine Mack's grand jury testimony and defendant's own grand jury testimony is predicated on the so-called residual hearsay exception contained in Iowa Rule of Evidence 804(b)(5). Among the conditions for admissibility under that rule are (1) that the declarant be unavailable and (2) that the evidence is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts. We reject out of hand any claim that defendant was unavailable as a witness so as to permit the use of her grand jury testimony under this rule. Whether or not Katherine Mack's grand jury testimony was more probative on the point for which it would have been offered than any other evidence which defendant could procure through reasonable efforts is problematic. Consequently, the admissibility of that evidence is sufficiently doubtful that counsel's failure to offer it cannot provide the basis for a claim of ineffective counsel.[2]
Finally, we consider defendant's argument that her perception of her trial counsel's presentation caused her not to testify at trial, a circumstance now deemed to have been prejudicial to her defense. Her failure to testify occurred, she suggests, because her counsel's failure to offer available corroborating evidence of her self-defense claim convinced her that if she did testify she would not be believed. Because we have previously found that counsel's performance was sufficient when judged by prevailing constitutional standards, we do not deem it prudent to grant defendant relief based upon her subjective reactions to counsel's performance. We have considered all issues argued, notwithstanding *562 any failure on our part to discuss each of them in detail in this opinion. We find no basis upon which to overturn defendant's conviction. The judgment of the district court is affirmed.
AFFIRMED.
NOTES
[1]  On sixth amendment claims,

defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed by the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984) (emphasis added).
[2]  Katherine Mack's grand jury testimony indicates that she was a patron of the lounge when the altercation in the parking lot occurred. She was not an eyewitness to defendant's beating. She told the grand jury that she had heard persons who had been outside the lounge at the time confirm that defendant had been struck by her brother. She further testified that when defendant reentered the lounge she appeared to be "messed up" and showed signs of having been beaten about the head.