in the Interest of T.R.F., a Child ( 2007 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-07-00200-CV

In the Interest of T.R.F., a Child

From the 82nd District Court

Robertson County, Texas

Trial Court No. 05-07-17,283-CV

CONCURRING Opinion

I concur in the Court’s disposition of this appeal.  However, I continue to question whether subsection 263.405(i), as applied to termination cases involving an indigent parent whose appointed appellate counsel is not the same as appointed trial counsel, passes constitutional muster because it can operate to deprive appellate review of any issues under its accelerated timetable.[1]  See In re E.A.R., 201 S.W.3d 813, 816-18 (Tex. App.—Waco 2006, no pet.) (Vance, J., concurring).

T.F.’s two issues in her untimely statement of points are:  (1) the trial court abused its discretion by failing to dismiss this case when the dismissal date passed; and (2) the trial court abused its discretion in extending the dismissal date when no evidence existed supporting a finding of extraordinary circumstances.  T.F., through her appointed appellate counsel, asserts that her statement of points was untimely in part because trial counsel did not return repeated phone calls in advance of the various appellate deadlines. 

This circumstance raises at least the possibility of an ineffective-assistance-of-counsel claim relating to the untimely statement of points, and at least one court has held that an ineffective-assistance-of-counsel claim need not be in a statement of points.[2] Doe v. Brazoria County Child Prot. Serv’s., --- S.W.3d ---, ---, 2007 WL 93394, at *11 (Tex. App.—Houston [1st Dist.] Jan. 16, 2007, no pet. h.); but see In re J.F.R., 2007 WL 685640, at *2 (Tex. App.—Beaumont Mar. 8, 2007, no pet. h.) (mem. op.) (appellant must present ineffective-assistance claim in statement of points, either in a separate instrument or part of motion for new trial); In re J.H., 2007 WL 172105, *1 (Tex. App.—Tyler, Jan. 24, 2007, no pet.) (mem. op.) (same); In re A.H.L., III, 214 S.W.3d 45, 54 (Tex. App.—El Paso, Oct. 26, 2006, pet. denied) (same); In re D.A.R., 201 S.W.3d 229, 230-31 (Tex. App.—Fort Worth 2006, no pet.) (same).

Recognizing that our courts of appeals are following a strict interpretation of the statute, I reluctantly concur.  Cf. Pool v. Texas Dep’t Fam. & Prot. Serv’s., --- S.W.3d ---, ---, 2007 WL 624556, at *2 (Tex. App.—Houston [1st Dist.] Mar. 1, 2007, no pet. h.) (impliedly recognizing existence of ineffective-assistance claim for trial counsel’s failure to file timely statement of points).

BILL VANCE

Justice

Concurring opinion delivered and filed June 27, 2007

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[1]               I have also remarked that parental-rights termination cases are the “death-penalty” of civil law.  In re K.G.M., 171 S.W.3d 502, 506 (Tex. App.—Waco 2005, no pet.) (Vance, J., concurring).  The proceedings in these cases should be strictly scrutinized, and the involuntary termination statutes are strictly construed in favor of the parent.  Id. (citing Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)).

[2] Logically, an ineffective-assistance claim based on the untimeliness of the statement of points could not be required in a timely statement of points.

placed on probation in the three cases.

      After the State rested, Appellant's trial counsel made a motion to dismiss the motions to revoke on the grounds that there had been no evidence and/or insufficient evidence of any conviction in these cases.

      The State's first witness, Xavier Sanchez, testified that he was a Community Supervision Officer for Denton County; that he knew Appellant; that he had met with Appellant three times since June 1997; and he identified Appellant in court. Sanchez further testified that Appellant reported to him claiming to be the person placed on probation in Trial Court Cases Nos. F-95-0477-C, 20-159-C and 19-826-C.

      Point 1 is overruled in each case.

      Point 2: "The trial court erred and abused its discretion in revoking the community supervision of Appellant based on improper admission of evidence by the State after the State had closed all testimony."

      As noted, Appellant's motion to dismiss, on the grounds there was no evidence or insufficient evidence of any conviction, was made after the State had rested. After Appellant made his motion to dismiss, the court allowed the State to reopen and stated: "I will take judicial notice of the entire contents of the court's file in Nos. 20-159-6, 19,826-C and F-95-0477-C, after which the State again rested.

      Appellant asserts the trial court erred and abused its discretion in allowing the State to reopen its case and did not remain impartial, but rather assisted the State in its case. Appellant further asserts the trial court left the bench and made the prosecution and the bench one and the same by its actions. Appellant now asserts this court should reverse for an abuse of discretion and violation of fundamental due process as guaranteed by the Fourth, Fifth, Sixth and Fourteenth Amendments to the U.S. Constitution and their counterparts under the Texas Constitution.

      The trial court may allow additional evidence to be introduced at any time prior to the conclusion of argument if the testimony appears to be necessary in the due administration of justice. Tex. Code Criminal Proc. art. 36.02. The trial court's decision to do so is reviewable on appeal by the abuse of discretion standard. Sims v. State, 833 S.W.2d 281 (Tex. App.—Houston [14th Dist.] 1992, pet. ref'd); Choice v.v State, 883 S.W.2d 325, 327 (Tex. App.—Tyler 1994, no pet.).

      The trial judge may permit the State to reopen its case even if the defendant has made a motion for an instructed verdict. Boatwright v. State, 472 S.W.2d 765 (Tex. Crim. App. 19791). And such is proper in a probation revocation hearing. Cantu v. State, 662 S.W.2d 455 (Tex. App.—Corpus Christi 1983, no pet.).

      Moreover, this court can take judicial notice of the judgment placing Appellant on supervision as long as it is in the record. Cobb v. Sate, 851 S.W.2d 871 (Tex. Crim. App. 1993). The Cobb court held that the State is not required to introduce such judgments into the record and, because the orders of probation are a part of the appellate record, that the Cobb court judicially noticed the order of probation and presumed the trial court did so as well. Thus it was not necessary for the trial court to permit the State to reopen in order for the trial court to take judicial notice of the orders of probation.

      It is true that the law requires that judges be impartial and that they not take sides in assisting either side in our adversary system of justice. Cannon 2A of the Code of Judicial Conduct provides that “a judge . . . should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

      The foregoing is applicable to probation revocation hearings. And since the probationer is entitled to due process at a hearing to revoke, the trial court should not assist the State in the presentation of its case. Campbell v. State, 556 S.W.2d 918 (Tex. Crim. App. 1970).

      In reviewing this record, however, we do not find that Appellant was in any way denied due process of law by the conduct of the trial court.

      In summary, the trial court was authorized to permit the State to reopen after it had rested; was authorized to take judicial notice of the judgments in Appellant’s cases, with or without reopening the case; and finally we do not find that Appellant was denied due process rights by any action of the trial court.

      Point 2 is overruled in each case

      Point 3: “The trial court erred and abused its discretion in revoking the community supervision of Appellant based on insufficient evidence of the violation of law by commission of the offense Driving While Intoxicated.”

      The only issue on appeal from the revocation of community supervision is whether the trial court abused its discretion. Flournoy v. State, 589 S.W.2d 705 (Tex. Crim. App. 1979). The State must prove its allegations by a preponderance of the evidence. Shaw v. State, 622 S.W.2d 862, 863 (Tex. Crim. App. 1981). One sufficient ground for revoking supervision will support the trial court’s order revoking community supervision. Moore v. State, 605 S.W.2d 926 (Tex. Crim. App. 1980). In a revocation proceeding the judge is the trier of fact. Storey v. State, 614 S.W.2d 162, 164 (Tex. Crim. App. 1981). The court may accept or reject any or all testimony of any witness. McGuire v. State, 537 S.W.2d 26, 28 (Tex. Crim. App. 1976).

      Officer Grant was on duty on January 29, 1997. About 10:47 p.m. he saw a black pickup stopped at Hillside Drive and Highway 720 in the town of Little Elm. There was no traffic on the road. The pickup started up and Grant saw it cross the center line three times. Grant activated his lights and stopped the pickup. He identified Appellant as the driver. Grant talked with him, noticed his words were slurred and his breath smelled of alcoholic beverage. He asked Appellant if he had been drinking and Appellant said he had half a beer. Grant administered field sobriety tests including a walk and turn test. Appellant was unable to perform the test. Grant testified that, based on his training, experience and observations, he believed Appellant was intoxicated. Grant then took Appellant to the county jail where Appellant refused to take a breathalyzer test.

      Witness Yaw arrived at the scene. She testified she smelled alcohol on Appellant’s breath. Appellant denied drinking an alcoholic beverage; testified he did not do well on the walk and turn test because he had bad feet and diabetes. Other witnesses testified they had been with Appellant earlier in the evening and that he did not drink an alcoholic beverage. The trial court was authorized to find Appellant guilty of DWI. Point 3 is overruled in each case.

      Point 4: “The trial court erred and abused its discretion in revoking the community supervision of appellant based on admission of unqualified expert testimony.”

      Officer Grant testified that he based his opinion that Appellant was intoxicated in part on the Horizontal Gaze Nystagmus (HGN) test that he administered. He admitted that he was not certified by the State to administer this test.

      The trial judge stated on the record that he would disregard any testimony concerning the Horizontal Gaze Nystagmus test and the testimony related thereto. The matter was rendered harmless, if error, by the trial court’s declaration.

      Point 4 is overruled in each case.

      Point 5: “The trial court erred and abused its discretion in revoking the community supervision of Appellant based on insufficient evidence of Appellant’s failure to report while under community supervision.”

      Under our view of the case, this point is moot in each case. The judgment is affirmed in all three cases.

                                                                               FRANK G. McDONALD

                                                                               Chief Justice (Retired)

Before Chief Justice Davis.

      Justice Cummings and

      Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed August 26, 1998

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