in the Interest of B. J. L. a Child ( 2006 )

NO. 07-06-0083-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

SEPTEMBER 5, 2006 ______________________________

IN THE INTEREST OF B. J. L., a child _________________________________

FROM THE 364^th DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2002-517,417; HON. BRADLEY S. UNDERWOOD, PRESIDING _______________________________

Memorandum Opinion _______________________________

Before QUINN, C.J. and REAVIS and CAMPBELL, JJ.

Daryl M. Washington appeals from an order terminating his parental rights to his daughter B. J. L. The trial court appointed Washington counsel to represent him on appeal. Thereafter, his appointed counsel filed an Anders ⁽¹⁾ brief and motion to withdraw. ⁽²⁾ In the brief, appellate counsel certified that she diligently reviewed the record and concluded the appeal was meritless. So too did counsel inform her client of her conclusion and of his right to review the record and file a pro se response to the brief and motion. This court also informed Washington in writing of counsel's motion and brief and of his right to respond by August 16, 2006. Washington has failed to do so.

Appellate counsel discussed one possible issue for appeal but then explained why the issue was not viable. ⁽³⁾ We also reviewed the record as we are obligated to do to discover any arguable grounds of appeal. Stafford v. State, 813 S.W.2d 503, 511 (Tex. Crim. App. 1991). Upon conducting that review, we determined that Washington 1) had notice of the grounds proffered for terminating his parental rights except for his failure to comply with a court order, and 2) appeared at the hearing and had the opportunity to defend against those grounds through use of counsel, the presentation of evidence, and the cross-examination of adverse witnesses. Furthermore, the evidence presented at trial legally and factually supports one or more of the findings that Washington 1) engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangered the physical or emotional well-being of the child, 2) voluntarily, and with knowledge of the pregnancy, abandoned the child's mother beginning at a time during her pregnancy with the child and continuing through the birth, failed to provide adequate support or medical care for the mother during the period of abandonment before the birth of the child, and remained apart from the child or failed to support the child since the birth, and 3) knowingly engaged in criminal conduct that has resulted in his conviction of an offense and confinement or imprisonment and inability to care for the child for not less than two years from the date the petition was filed. ⁽⁴⁾ However, we do not find in the record a petition alleging the failure to comply with a court order as a ground for termination. Because Washington did not receive notice of the latter allegation, the trial court cannot rely on it as a basis for termination. See In the Interest of S.R.M., 601 S.W.2d 766, 769 (Tex. Civ. App.-Amarillo 1980, no writ) (stating that the statutory grounds for termination must be stated in the petition). Therefore, we will reform the judgment accordingly. The record also contains evidence upon which the court could clearly and convincingly find that termination of Washington's parental rights was in the best interest of the child.

Having found no arguable merit to the appeal, we reform the judgment by removing paragraph 7(d) (involving Washington's alleged failure to comply with a court order) as a ground warranting termination and affirm the order as modified. So too do we grant counsel's motion to withdraw.

Brian Quinn

Chief Justice

1. Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).

2. The trial court appointed appellate counsel to represent Washington via the directives contained in the Texas Family Code. Tex. Fam. Code Ann. §107.013 (Vernon Supp. 2006) (stating that an indigent parent is entitled to appointed counsel in proceedings to terminate the parent/child relationship).

3. The issue is with respect to the trial court's extension of the termination suit one day after the statutory deadline. See Tex. Fam. Code Ann. §263.401(Vernon Supp. 2006). However, the State non-suited the lawsuit against Washington before any adjudication of his rights making the issue moot.

4. The trial court's decision may be affirmed if the evidence supports the existence of one statutory ground assuming that the State also proved that termination was in the best interest of the child. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003).

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NO. 07-10-0326-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

FEBRUARY 14, 2011

JOSHUA RICKY CHANCY,  

                                                                                         Appellant

v.

THE STATE OF TEXAS, 

                                                                                         Appellee

___________________________

FROM THE 242ND DISTRICT COURT OF CASTRO COUNTY;

NO. A3258-1003; HONORABLE EDWARD LEE SELF, PRESIDING

Memorandum Opinion

Before QUINN, C.J., HANCOCK, J., and BOYD, S.J.[1]

            Joshua Ricky Chancy challenges the legal sufficiency of the evidence to sustain his conviction of tampering with evidence.  We affirm the judgment.

            In determining the legal sufficiency of the evidence, we review the record in the light most favorable to the verdict to ascertain whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). To convict appellant of tampering with evidence, the State was required to prove that, knowing that an offense had been committed, appellant intentionally or knowingly destroyed a glass methamphetamine pipe with intent to impair its availability as evidence in any subsequent investigation or official proceeding related to the offense. Tex. Penal Code Ann. §37.09(d)(1) (Vernon Supp. 2010).  Appellant contends the evidence is insufficient to show that he knew that an offense, i.e. possession of drug paraphernalia, had been committed because there is no evidence that he possessed a drug pipe with intent to use it to inject, ingest, inhale, or otherwise introduce a controlled substance into his body.  Tex. Health & Safety Code Ann. §481.125(a) (Vernon 2010).

            On February 5, 2010, Officers Julian Dominguez and Louis Liscano attempted to serve an arrest warrant on appellant in Dimmitt at the residence of his mother.  They were assisted by Deputy Miguel Pantoja.  Appellant first attempted to avoid them by leaving via another door of the house.  However, he eventually came to the front door and cursed at the officers.  During a subsequent pat-down search of appellant by Dominguez, appellant used his right hand to reach into his pocket and pull out a glass pipe.  He attempted to hand the pipe to his mother but when he was unable to reach her, he pushed the officer and smashed the pipe against the porch shattering the pipe.

            In determining whether an item is drug paraphernalia, an authority may consider, among other things:  1) statements made by an owner or person in control of the object concerning its use, 2) the existence of any residue of a controlled substance on the object, 3) the existence and scope of uses for the object in the community, 4) the physical design characteristics of the item, and 5) expert testimony concerning the item’s use.  Id. §481.183 (a) (1), (2) ,(9), (10) & (11).  Evidence in support of the finding that the item was a drug pipe and appellant knew it to be one includes:  1) appellant’s forceful action in attempting to remove the pipe from his person and smash it (which one would presumably not do with an item that was not contraband), 2) testimony from Dominguez that, in thirty-one years experience in law enforcement, he has seen a number of drug pipes and this one was consistent with pipes used to ingest, inhale, or smoke methamphetamine, crack, or cocaine, 3) testimony from Pantoja that, based on his training and experience, the pieces of glass appeared to be a “meth pipe,” 4) testimony from Dominguez that there appeared to be a frosted look to the pipe, and 5) testimony from Pantoja that he observed white residue which appeared to be contraband on some of the pieces of glass. This evidence, viewed in its most favorable light, is sufficient to support the jury’s determination that the item constituted drug paraphernalia. See Nichols v. State, 886 S.W.2d 324, 326 (Tex. App.–Houston [1^st Dist.] 1994, pet. ref’d) (holding that testimony from a deputy that he saw an aluminum pipe with a bowl covered by metal mesh and that in his experience this kind of pipe was normally used to smoke marijuana met the definition of drug paraphernalia).

            Accordingly, the evidence is sufficient to sustain the conviction, and the judgment is affirmed.        

                                                                                    Per Curiam

Do not publish.

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[1]Senior Justice John T. Boyd, retired, sitting by assignment.