In re A.P. & I.P

In In re A.P. & I.P., 42 S.W.3d 248 (Tex. App.-Waco 2001, no pet.), the court of appeals was asked to review unpreserved factual and legal sufficiency complaints about the grounds for termination and whether termination was in the best interest of the child. 42 S.W.3d at 254-55. The court of appeals cited S.R.M. as precedent for considering unpreserved error and held that terminating parental rights without appellate review of an unpreserved sufficiency complaint is a due process violation. 42 S.W.3d at 255. Then, the court of appeals referred to criminal cases, which have held that a defendant does not have to preserve for appellate review a complaint that the evidence is factually or legally sufficient. 42 S.W.3d at 255-56 (citing Chesnut v. State, 959 S.W.2d 308, 311 (Tex. App.-El Paso 1997, no pet.); Davila v. State, 930 S.W.2d 641, 649 n.7 (Tex. App.-El Paso 1996, writ ref'd)). Because criminal cases and termination cases both require heightened burdens of proof -- "beyond a reasonable doubt" in criminal cases and "clear and convincing" in termination cases -- the A.P. court concluded it a "logical extension" to review unpreserved sufficiency issues in termination cases. 42 S.W.3d at 256.