William Lee Brothers v. Belynda Kay West ( 2009 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-202-CV
WILLIAM LEE BROTHERS APPELLANT
V.
BELYNDA KAY WEST APPELLEE
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FROM THE 324TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. INTRODUCTION
In this parental-rights termination appeal, Appellant William Lee Brothers
argues that the trial court erred by denying both his request for a jury trial and
his request for a court-appointed attorney. We will affirm.
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… See Tex. R. App. P. 47.4.
II. B ACKGROUND
William’s parental rights were terminated in a divorce proceeding initiated
by his wife, Belynda. At the time of their divorce, William and Belynda had
been married since April 14, 1997, although they had known one another for
nearly twenty years. They have two daughters, Molly and Holly.2 William and
Belynda married while William was in prison—serving time for a 1993
conviction of indecency with a child. He is a registered sex offender and the
alleged victim of his 1993 crime was Belynda’s younger sister, who was
thirteen years old at the time of the offense.
In October 2005, Child Protective Services (CPS) received allegations that
William was neglectfully supervising and abusing Molly and Holly. Shortly after,
William was arrested for a parole violation related to his 1993 conviction.
Caseworker Cyndi Erwin reported that when a police officer informed Belynda
and the two girls that William had been arrested, “[T]hey all reacted with
excitement. [Molly] began to cry and told the officer ‘thank you.’” According
to Erwin, Belynda had the same reaction. Erwin reported that the family claims
that “William is a very violent man. He has hit the girls and pulled their hair.
He calls them names such as slut and tramps.” Erwin also reported that Molly
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… To protect the identify of the children, we will use aliases for the
names of the children. Tex. R. App. P. 9.8(b)(1)(A).
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alleged that William had sexually assaulted her, and, although she would not
initially go into details, she said that William “did to her what he did to end up
in jail the first time.”
In March 2006, the Texas Department of Family and Protective Services
(TDFPS) filed suit seeking to terminate both Belynda’s and William’s parental
rights to Molly and Holly. In 2006, Belynda filed for divorce. In her first
amended petition, filed in July 2006, Belynda also pleaded that William’s
parental rights to their two children be terminated. Belynda also applied, in the
pending divorce suit, for a protective order in July 2006 to prevent William’s
access to the two girls. In January 2007, the trial court consolidated Belynda’s
divorce petition with TDFPS’s termination suit. William also pleaded guilty to
aggravated sexual assault of a minor—the alleged victim being Molly—and is
now serving a twenty-five-year sentence.
The trial court appointed W illiam an attorney in the TDFPS termination
suit, who filed an answer on William’s behalf. In his February 16, 2007
answer, William requested a jury trial and stated that thirty dollars was paid as
a jury fee. In June 2007, the trial court granted TDFPS’s motion to dismiss its
termination suit. In December 2007, citing the dismissal of TDFPS’s
termination suit, the trial court ordered William’s court-appointed attorney to
withdraw from this case and denied William’s request for continuing court-
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appointed counsel based on his claim of indigence. The trial court granted
William’s request to be bench warranted, and William attended the February 6,
2008 bench trial on Belynda’s remaining divorce and termination suit.
At the February 6 trial, without objecting that the case was being tried
before the bench, both Belynda and William testified. The majority of both
parties’ testimony concerned the division of the couple’s property. William also
testified that he did not “want to lose [his] kids.” He said that he was fighting
his current conviction for aggravated sexual assault of a minor because of
“newly found evidence due to perjured statements” but did not elaborate. Both
William and Belynda testified that William had anger issues. Belynda described
William as “mean and violent.” William stated that often “[his] anger gets
a-hold of [him] . . . [and he] end[s] up hurting someone . . . . Most of the time,
it’s someone that [he] love[s].” Ultimately, the trial court granted the divorce
and terminated William’s parental rights to Molly and Holly. See Tex. Fam.
Code Ann. § 161.001(1)(L) (Vernon 2008) (providing that a trial court may
terminate the parent-child relationship if the court finds by clear and convincing
evidence that the parent has been found guilty of, among other things,
indecency with a child or aggravated sexual assault of a child). This appeal
followed.
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III. D ISCUSSION
In part of his sole issue, William argues that he was denied his right to a
jury despite having requested and paid for one.
A. Request for a Jury
The right to a jury trial is guaranteed by the Texas Constitution. Tex.
Const. art. I, § 15 (“The right of trial by jury shall remain inviolate.”), art. V,
§ 10 (“In the trial of all causes in the District Courts, the plaintiff or defendant
shall, upon application made in open court, have the right of trial by jury.”).
The right to a jury trial in a civil case is not self-executing. See Vardilos v.
Vardilos, 219 S.W.3d 920, 923 (Tex. App.—Dallas 2007, no pet). To invoke
and perfect the right to a jury trial in a civil case, a party must first comply with
the requirements of rule 216. Id. Texas Rule of Civil Procedure 216 provides
as follows:
a. Request. No jury trial shall be had in any civil suit, unless a
written request for a jury trial is filed with the clerk of the court a
reasonable time before the date set for trial of the cause on the
non-jury docket, but not less than thirty days in advance.
Tex. R. Civ. P. 216. But even when a civil litigant has perfected a right to a
jury trial, a litigant waives that right if the litigant participates in a bench trial
without objection. See, e.g., In re D.R., 177 S.W.3d 574, 580 (Tex.
App.—Houston [1st Dist.] 2005, pet. denied) (holding that litigants waived their
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objection to bench trial by failing to object or otherwise indicate they possessed
“perfected” right to jury trial until charge conference); In re A.M., 936 S.W.2d
59, 61 (Tex. App.—San Antonio 1996, no writ) (observing that perfected right
to jury trial in civil case may be waived by party’s failure to act when trial court
proceeds with bench trial); Sunwest Reliance Acquisitions Group, Inc. v.
Provident Nat’l Assur. Co., 875 S.W.2d 385, 387 (Tex. App.—Dallas 1993, no
writ) (holding “that when a party has perfected its right to a jury trial in
accordance with rule 216 but the trial court instead proceeds to trial without
a jury, the party must, in order to preserve any error by the trial court in doing
so, either object on the record to the trial court’s action or indicate affirmatively
in the record it intends to stand on its perfected right to a jury trial”).
William filed his jury demand and paid the jury fee almost one year before
trial. Therefore, he perfected his right to a jury trial in accordance with rule
216. Neither William nor Belynda objected to the trial court proceeding with a
bench trial, and William did not otherwise take any affirmative action to indicate
that he intended to stand on his perfected right to a jury. Thus, William waived
his jury trial right. We overrule this portion of William’s issue.
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B. Right to Appointed Counsel
In the remainder of his sole issue, William argues that the trial court erred
by denying him his “mandatory” right to an appointed ad litem under Texas
Family Code section 107.013(a)(1). See Tex. Fam. Code Ann. § 107.013(a)(1)
(Vernon 2008) (mandating appointment of attorney ad litem for an indigent
parent “[i]n a suit filed by a governmental entity in which termination of the
parent-child relationship” is sought). We disagree. This court has held that no
statutory right exists to appointed counsel in a private termination suit. In re
J.C., 250 S.W.3d 486, 489 (Tex. App.—Fort Worth 2008, pet. denied).
Here, the trial court granted TDFPS’s motion to dismiss its termination
suit, leaving only Belynda’s private termination suit. Because William’s parental
rights were terminated in a private termination suit, he possessed no mandatory
statutory right to appointed counsel. See id. Consequently, we overrule the
remainder of William’s sole issue.
C. Motion to Enforce Court Order
William has also filed a separate motion to enforce the trial court’s order
in the divorce decree that Belynda divide the proceeds of their former bank
account. But the trial court retains jurisdiction to enforce its own judgments
even after its plenary power has expired. See Tex. Fam. Code Ann. § 9.001(a)
(Vernon 2006) (“A party affected by a decree of divorce . . . providing for a
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division of property . . . may request enforcement of that decree by filing a suit
to enforce as provided by this chapter in the court that rendered the decree.”).
Thus, William should file enforcement proceedings in the trial court. We deny
William’s “Motion to Enforce Court Order.”
IV. C ONCLUSION
Having overruled William’s sole issue, we affirm the trial court’s
judgment.
PER CURIAM
PANEL: MEIER, GARDNER, and WALKER, JJ.
WALKER, J. concurs without opinion.
DELIVERED: May 7, 2009
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