¶1dissenting.
¶2The trial judge stated in this decree that the mother did not show by a preponderance of the evidence that the appellee was the natural father of this child. The mother had the burden of proof on all issues and appellee was not obliged to prove anything in this case, as he asserted no defenses. As stated by Justice Norvell in Dyer v. Sterett, 248 S.W.2d 234, 239 (Tex.Civ.App.-San Antonio 1952, no writ):
The fact that an appellate court after a review of the evidence may have reached a different conclusion from that of the jury or the trial judge sitting without a jury is not sufficient basis for setting aside the verdict or finding. Crawford v. Beaver-Electra-Refining Co., Tex.Civ.App., 273 S.W. 892; Canales v. Clopton, Tex.Civ.App., 145 S.W.2d 933.
¶3In determining whether appellee was the father of this child, the trial court had to base its findings on the conflicting testimony of interested witnesses. The crucial testimony came from the mother, who testified that she was having sexual relations with appellee and no other man during the time that the child was conceived. It was within the sole province of the trial judge as trier of fact to observe the demeanor of the witnesses, to judge their credibility, and to determine the weight to give to their testimony. See Hood v. Texas Indemnity Insurance Co., 146 Tex. 522, 209 S.W.2d 345, 346 (1948); Ryan v. Morgan Spear Associates, Inc., 546 S.W.2d 678, 684 (Tex.Civ.App.-Corpus Christi 1977, writ ref’d n. r. e.); Lane v. Brown, 312 S.W.2d 735, 739 (Tex.Civ.App.-Dallas 1958, writ ref’d n. r. e.). The trial judge was authorized to disbelieve the mother and to determine how much weight to give the blood test evidence in light of its judgment of her credibility. On the other hand, this court is not authorized to pass upon the credibility of witnesses or the weight to be given inconclusive evidence such as this blood test.
¶4The parties elected to try this case to the court in the absence of a jury. When the credibility of the witnesses and the weight to be given to the proof is decisive, such a choice is not without risk because the findings are to be made by only one person. Nevertheless, when the trial court found against the mother, it was in a better position to rule on the evidence than an appellate court. Accordingly, I would affirm.