in the Interest of T. B. C. and C. T. R., Jr., Minor Children ( 2009 )

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

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No. 06-09-00048-CV ______________________________





IN THE INTEREST OF T.B.C. AND C.T.R., JR., MINOR CHILDREN

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On Appeal from the 307th Judicial District Court Gregg County, Texas Trial Court No. 2008-960-DR

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Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

Jane ⁽¹⁾ filed her notice of appeal May 7, 2009, from the trial court's order terminating her parental rights to T.B.C. and C.T.R., Jr.

Jane's counsel filed a motion to withdraw. We abated this case to the trial court to conduct a hearing to determine whether counsel should be allowed to withdraw and to determine whether Jane desired to proceed with her appeal. Although given notice of the hearing, Jane did not appear. After that hearing, the trial court granted counsel's motion. Jane is therefore representing herself in this appeal.

The clerk's and reporter's records were due to be filed on or before June 26, 2009. Appellant is not indigent, and is thus responsible for paying or making adequate arrangements to pay the clerk's and reporter's fees for preparing the records. See Tex. R. App. P. 37.3.

On July 28, 2009, we contacted Jane by letter, reminding her that the records were past due, and warning that, if we did not receive an adequate response within ten days, we would dismiss the appeal for want of prosecution pursuant to Rule 42.3(b) and (c) of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 42.3(b), (c).

As of the date of this opinion, we have received no response. The records are now over seventy days past due.

We dismiss the appeal for want of prosecution.

Jack Carter

Justice

Date Submitted: September 8, 2009

Date Decided: September 9, 2009

1. To protect the identity of the children who are the subject of this suit, we shall refer hereinafter to Appellant as Appellant or by the pseudonym "Jane." See Tex. Fam. Code Ann. § 109.002(d) (Vernon 2008).

07, 2008 WL 2512832, at *5 (Tex. Crim. App. June 25, 2008) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)).

The State's amended trial information alleged Mouton "did . . . intentionally and knowingly fail unreasonably to provide necessary food, care and shelter for an animal to-wit: a light colored dog in the defendant's care and custody."

Section 42.09 of the Texas Penal Code, as applicable at the time of trial, provided, in pertinent part,

(a) A person commits an offense if the person intentionally or knowingly . . .

. . . .

(2) fails unreasonably to provide necessary food, care, or shelter for an animal in the person's custody . . . .

. . . .

(c) For purposes of this section:

(1)"Abandon" includes abandoning an animal in the person's custody without making reasonable arrangements for assumption of custody by another person.

(2)"Animal" means a domesticated living creature and wild living creature previously captured. "Animal" does not include an uncaptured wild creature or a wild creature whose capture was accomplished by conduct at issue under this section.

(3) "Cruel manner" includes a manner that causes or permits unjustified or unwarranted pain or suffering.

(4)"Custody" includes responsibility for the health, safety, and welfare of an animal subject to the person's care and control, regardless of ownership of the animal.

(5)"Necessary food, care, or shelter" includes food, care, or shelter provided to the extent required to maintain the animal in a state of good health.

Act of May 24, 2001, 77th Leg., R.S., ch. 450, § 1, 2001 Tex. Gen. Laws 887, 887-88.

The hypothetically correct jury charge would, in this case, authorize Mouton's conviction if the State presented legally sufficient evidence that he (a) failed to provide (b) necessary food, care, or shelter (c) to a dog (d) that had been in Mouton's custody (e) at the time in question.

The State's evidence consisted of testimony and photographs. Of the nearly thirty 8¹/₂" x 11" photographs of the dogs, the rib cage of the dog shown in Exhibits 1-9 is distinctly visible. This dog also has one open and bleeding wound on its back near the right shoulder. The animal is chained to an oil drum and has access only to green, algae-infested water. The only visible food within reach of the dog's chain is some kibble scattered on the ground near the animal. (Subsequent testimony would reveal this food had been placed there by one of the investigating officers after they arrived at the scene and shortly before the pictures were taken.) The other animals pictured in the State's photographs show similar open wounds on their noses, legs, and back. ⁽⁴⁾

Wayne "Doc" Pierce, ⁽⁵⁾ a constable for Precinct 2 in Hunt County, testified that, on June 6, 2007, he and two other officers went to a house being leased by Mouton. Constable Pierce found twelve canines at the premises: three puppies and nine adults. The constable said he found no food or food bowls available for the dogs. Continuing, he said, "There was very little water in some of the little dishes like a hub cap or tub, and that water was, in my opinion, stagnant." The constable described the animals as being "in a condition of poor nourishment." "Most of the animals had open wounds" and their "[r]ib cages were visible on some of the dogs." Constable Pierce also later talked with Mouton, who admitted that he owned these animals.

Terry  Jones,  an  investigator  with  Hunt  County's  Environmental  Office,  saw  the  dogs June 6, 2007. The animals were malnourished, without food or fresh drinking water, and had open sores. According to Jones, the dog pictured in State's Exhibit 1 needed medical attention both for its wounds and for its malnourished state. When one of the other officers found some dog food inside a trash bin and spread it on the ground for the dogs to eat, those animals that were not otherwise afraid of these "strangers'" presence immediately began gorging themselves as if they had not eaten in quite some time.

There was also testimony from Mike Pierce, a certified peace officer employed with the Hunt County Environmental Enforcement Office. ⁽⁶⁾ Officer Pierce told the jury that, on June 6, 2007, he accompanied the other officers to property being rented by Mouton. Officer Pierce described the water that had been left for the dogs as stale and having a "green, algae-type mold" that was the color of antifreeze. None of the animals had any food within their reach. Officer Pierce also opined that "they hadn't eaten in some time." Based on the dogs' behavior and appearance, Officer Pierce concluded these animals were starving and needed fresh drinking water.

Finally, Art Munoz, Jr., a certified peace officer and an animal cruelty investigator for the Society for the Prevention of Cruelty to Animals, testified on the State's behalf. Munoz went to the location at issue in this case June 6, 2007. The dogs, which Munoz identified as pit bulls, appeared dirty and scarred. The only available water was stagnant and algae-filled. Munoz noticed that one of the dogs was extremely malnourished. He described that dog as having a recent wound on its back, which had become infected. While the record is unclear as to which animal Munoz is specifically referring, his testimony would be consistent with the appearance of the dog pictured in State's Exhibits 1-9.

We believe a reasonable jury could have found the State met its burden of proof, as measured by the elements set forth in the hypothetically correct jury charge, beyond a reasonable doubt. The evidence showed Mouton failed to provide necessary food and medical care to at least one dog that had been in his custody. Therefore, the trial court did not err in denying Mouton's motion for a directed verdict or in denying the motion for new trial to the extent that both motions challenged evidentiary sufficiency. Cf. Martinez v. State, 48 S.W.3d 273, 275 (Tex. App.--San Antonio 2001, pet. ref'd) (animal cruelty investigator testified that distinct visibility of dog's vertebrae along spine and severe tuck in abdominal wall are indicators of malnourishment; evidence legally sufficient). We overrule these points of error.

(2) Ineffective Assistance of Counsel Has Not Been Shown

Mouton also claims he received ineffective assistance of counsel in two respects: (a) a key witness was not subpoenaed and a continuance was not sought to secure that witness' testimony, and (b) counsel allowed Mouton to testify in narrative form during the punishment phase. Ineffective assistance of counsel has not been shown.

The standard for testing claims of ineffective assistance of counsel is set out in Strickland v. Washington, 466 U.S. 668 (1984). See also Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986). To prevail, an appellant must prove by a preponderance of the evidence (1) that counsel's representation fell below an objective standard of reasonableness and (2) that this deficient performance prejudiced the defense. Strickland, 466 U.S. 668; Rosales v. State, 4 S.W.3d 228, 231 (Tex. Crim. App. 1999). Under this standard, a claimant must demonstrate that counsel's representation so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. Strickland, 466 U.S. at 686.

Our review of counsel's representation is highly deferential, and we indulge a strong presumption that counsel's conduct falls within a wide range of reasonable representation. Id. at 689; Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). This Court will not second-guess through hindsight the strategy of counsel at trial, nor will the fact that another attorney might have pursued a different course support a finding of ineffectiveness on direct appeal. Blott v. State, 588 S.W.2d 588, 592 (Tex. Crim. App. 1979); Harner v. State, 997 S.W.2d 695, 704 (Tex. App.--Texarkana 1999, no pet.). Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

When ineffective assistance is raised on direct appeal, appellate counsel and the court must proceed on a trial record not developed for the object of litigating or preserving the claim and thus often incomplete or inadequate for this purpose. Massaro v. United States, 538 U.S. 500, 504-05 (2003); Freeman v. State, 125 S.W.3d 505, 506 (Tex. Crim. App. 2003). Nevertheless, there are rare cases where "trial counsel's ineffectiveness is so apparent from the record" that the inherent need for reversal is obvious. Massaro, 538 U.S. at 508; Freeman, 125 S.W.3d at 507.

Mouton's first argument that he was not provided effective assistance of counsel relates to a potential witness who was not called. On the eve of trial, "a material witness named Quaneal Anthony" was purportedly discovered, but trial counsel neither subpoenaed Anthony, nor moved for a continuance to secure his testimony. Mouton contends the outcome of his case would have been different had Anthony been called to testify at trial.

Mouton's trial counsel did not testify at the hearing on the motion for new trial. Therefore, we have no explanation from Mouton's trial counsel as to why Anthony was not subpoenaed to testify in Mouton's defense. In cases where the record is silent as to trial counsel's alleged failures, a claim of ineffective assistance will generally fail to meet the high burden of rebutting the appellate presumption that trial counsel's conduct fell within the wide range of professional norms. Thompson, 9 S.W.3d at 814. This is such a case.

Instead of calling his trial counsel to testify and explain why Anthony was not called as a witness--and thereby provide this Court with a record on which to assess counsel's trial strategy--Mouton called Anthony to testify at the hearing on the motion for new trial. Anthony told the trial court that he had been hired by Mouton to take care of Mouton's twelve dogs during the period before authorities found the animals in an emaciated and neglected state. Anthony testified that he had been taking care of the animals for "[f]our or five or six [months] before the incident. ." Shortly before the date when police intervened to find the neglected animals, Anthony had been arrested and incarcerated in the Rockwall County Jail for possession of marihuana. Anthony said his incarceration prevented him from being able to care for the animals, which reportedly resulted in the state of neglect in which they were found by authorities.

On cross-examination, it was revealed that Anthony had been previously convicted and imprisoned for robbing a United States Postal Service employee, had been found guilty of aggravated assault with a deadly weapon, and had been sentenced to eight years' confinement for robbery.

It is possible that Mouton's trial counsel considered calling Anthony to testify in Mouton's defense, but instead made the strategic decision not to do so based on Anthony's criminal history. See Tex. R. Evid. 609(a) (permitting impeachment of witness with evidence of felony criminal conviction). A reasonable trial strategy might be to avoid allowing the jury to associate Mouton with a convicted felon, especially given the fact that Mouton himself had spent time in prison for narcotics trafficking. Therefore, because we can imagine a strategic reason for Mouton's trial counsel to not call Anthony as a defense witness, the record before us will not support Mouton's claim that counsel provided ineffective assistance during the guilt/innocence phase.

Mouton's second allegation about ineffective assistance of counsel contends his trial counsel improvidently "allowed the Appellant to speak freely to the [trial] Court . . . [and] did not engage Appellant in a question and answer dialog normal to such proceedings." According to Mouton, this unfortunate decision allowed Mouton to make a statement that essentially invited the trial court to assess Mouton's punishment at the maximum sentence--one year in the county jail--which the trial court did impose.

We similarly conclude the record does not support the claim that Mouton's trial counsel was ineffective during punishment. As we have noted, Mouton's trial counsel was not called to testify at the hearing on the motion for new trial. Nothing in the record suggests why trial counsel permitted Mouton "to speak freely" with the trial court during the punishment phase of trial.

While we have no record explanation as to trial counsel's strategy during punishment, one could reasonably imagine that Mouton's trial counsel had attempted to dissuade his client from addressing the trial court during punishment. Sometimes, standing mute is the best course of action. But an attorney can only advise the client on the best course of action. In the end, the decision of whether to address the trial court in one's own defense rests with the accused, not the accused's attorney.

A defendant has an absolute, constitutional right "to take the witness stand and to testify in his or her own defense." Rock v. Arkansas, 483 U.S. 44, 49 (1987). "The necessary ingredients of the Fourteenth Amendment's guarantee that no one shall be deprived of liberty without due process of law include a right to be heard and to offer testimony . . . ." Id. at 51. "The right to testify is also found in the Compulsory Process Clause of the Sixth Amendment, which grants a defendant the right to call 'witnesses in his favor,' a right that is guaranteed by the criminal courts of the States by the Fourteenth Amendment." Id. at 52 (referencing and quoting Washington v. Texas, 388 U.S. 14, 17-19 (1967)). "There is no justification today for a rule that denies an accused the opportunity to offer his own testimony." Id. (concluding that old common-law rule, which forbade criminal defendants from testifying due to their personal interest in trial's outcome, is irrational under our constitutional scheme). "The opportunity to testify is also a necessary corollary to the Fifth Amendment's guarantee against compelled testimony." Id. (citing Harris v. New York, 401 U.S. 222, 230 (1971)).

In  prompting  the  colloquy  from  the  accused,  Mouton's  trial  counsel  asked  his  client, "Mr. Mouton, tell the Judge what you - - what you told me what you would request. . . . Tell him what your feelings are about probation and jail time and those kind[s] of things." This passage suggests, at least to us, that Mouton had insisted on making a statement to the trial court, and, perhaps, had done so against the advice of counsel. Whether such was the case, we cannot agree that trial counsel provided ineffective assistance during the punishment phase of trial for allowing Mouton to exercise his constitutional right to address the trial court.

Also, attorney and client might have concluded that such form of testimony might provide better prospects for a sympathetic hearing by the trial court. But, of course, hindsight is twenty-twenty.

The record before us does not support Mouton's claims of ineffective assistance.

The State presented legally sufficient evidence to support the jury's verdict. The appellate record contains no explanation from Mouton's trial counsel about his trial strategy at either guilt/innocence or punishment in this case, and we can imagine reasonable explanations to answer

Mouton's claims of ineffective assistance. Accordingly, for the reasons stated, we overrule Mouton's various points of error and affirm the trial court's judgment.

Josh R. Morriss, III

Chief Justice

Date Submitted: September 25, 2008

Date Decided: October 28, 2008

Do Not Publish

1. See Act of May 24, 2001, 77th Leg., R.S., ch. 450, § 1, 2001 Tex. Gen. Laws 887, 887-88 (current version at Tex. Penal Code Ann. § 42.09 (Vernon Supp. 2008)).

2. A multifarious issue is one that raises more than one specific ground of error. In re S.K.A., 236 S.W.3d 875, 894 (Tex. App.--Texarkana 2007, pet. denied). We have repeatedly warned litigants to refrain from raising multifarious points of error. See, e.g., In re Guardianship of Moon, 216 S.W.3d 506, 508 (Tex. App.--Texarkana 2007, no pet.); Newby v. State, 169 S.W.3d 413, 414 (Tex. App.--Texarkana 2005, pet. ref'd). Failure to heed our warnings runs the risk of having any multifarious issue(s) being summarily overruled. Newby, 169 S.W.3d at 414; Harris v. State, 133 S.W.3d 760, 764 n.3 (Tex. App.--Texarkana 2004, pet. ref'd); Parra v. State, 935 S.W.3d 862, 875 (Tex. App.--Texarkana 1996, pet. ref'd). In the interest of addressing substantive issues, we will not take the opportunity in this case to overrule any of Mouton's issues on the basis of them being multifarious.

3. In still another point of error, Mouton contends "[t]he trial court erred in denying Appellant's Motion for Directed Verdict because the evidence is factually insufficient to support the jury's verdict."

A motion for a directed verdict is a challenge to the legal sufficiency of the evidence. Todd v. State, 242 S.W.3d 126, 136 (Tex. App.--Texarkana 2007, pet. ref'd); Rice v. State, 195 S.W.3d 876, 879 (Tex. App.--Dallas 2006, pet. ref'd); Yarborough v. State, 178 S.W.3d 895, 903 (Tex. App.--Texarkana 2005, pet. ref'd). A motion for a directed verdict is not a proper mechanism through which to challenge the factual sufficiency of the evidence. If a trial court were to supplant the jury's role as final arbiter of witness credibility and grant a directed verdict for factual insufficiency, such a ruling would constitute a clear abuse of discretion.

Because a motion for a directed verdict does not permit a trial court to order a judgment of acquittal based on factual (as opposed to legal) insufficiency, this point of error lacks any basis in law. We overrule it.

4. We note, however, that some of these other canines appear to have been better fed than the first canine described above.

5. To distinguish him from another witness who shares the same last name, we refer to this witness either as"Doc Pierce" or as "Constable Pierce" (the latter being in accordance with his job title).

6. To distinguish Mike Pierce from "Constable Pierce," we will refer to the former either as "Mike Pierce" or as "Officer Pierce" (the latter being in accordance with his job title).