Dustin Lee Allen v. State ( 2007 )

NO. 07-06-0457-CR

07-06-0458-CR

07-06-0459-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

JANUARY 24, 2007 ______________________________

DUSTIN LEE ALLEN, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE _________________________________

FROM THE 320^TH DISTRICT COURT OF POTTER COUNTY;

NO. 49,984-D, 49,985-D, 53,537-D; HONORABLE DON R. EMERSON, JUDGE _______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

ON ABATEMENT AND REMAND

Appellant, Dustin Lee Allen, seeks appeal of his conviction in three cases. We abate and remand for further proceedings.

In each case, appellant's notice of appeal was presented to the trial court and signed by appellant's attorney, Timothy Pirtle. Since that time, our court has had no further communication from appellant. Appellant has failed to file an adequate docketing statement as required under Rule 32.2 of the Texas Rules of Appellate Procedure. Further, the trial clerk's office and the court reporter have both requested extensions of time for filing of their respective records citing appellant's failure to make a request for the record or payment arrangements. ⁽¹⁾ See Tex. R. App. P. 34.5(b)(2), 34.6(b)(1), 35.3.

We now abate this cause and remand it to the 320th District Court of Potter County. It is ordered that the judge of said court convene a hearing, after due notice to all parties, to determine:

1) whether appellant desires to prosecute this appeal;

2) whether appellant continues to be represented by Timothy Pirtle or whether counsel for appellant has abandoned the appeal;

3) if appellant is not represented by counsel, whether appellant is indigent and, therefore, is entitled to appointed counsel and a record of the trial court proceedings free of charge.

We further direct the trial court to issue findings of fact and conclusions of law addressing the foregoing subjects. Should the trial court find that appellant desires to pursue his appeal, is not represented by counsel and is indigent, we then further direct the court to 1) appoint counsel to assist in the prosecution of the appeal, and 2) issue an order requiring the preparation of a clerk's record in accordance with Rule 34.5 of the Texas Rules of Appellate Procedure. The name, address, phone number, fax number, and state bar number of any counsel who is appointed to represent appellant on appeal must also be included in the court's findings of fact and conclusions of law. Furthermore, the trial court shall also cause to be developed 1) a supplemental clerk's record containing the findings of fact and conclusions of law and all orders of the trial court issued as a result of its hearing on this matter and 2) a reporter's record transcribing the evidence and arguments presented at the aforementioned hearing. Additionally, the trial court shall cause the supplemental records to be filed with the clerk of this court on or before February 26, 2007. Should additional time be needed to perform these tasks, the trial court may request same on or before February 26, 2007.

It is so ordered.

Per Curiam

1. The court reporter has graciously offered to prepare the reporter's record upon a request from this Court. Without knowing whether appellant wishes to continue his appeal, we must decline the reporter's invitation.

same evidence may be probative of both issues, both elements must be established and proof of one element does not relieve the petitioner of the burden of proving the other. See id.; In re C.H., 89 S.W.3d at 28.

Standard of Review

Findings of fact in a bench trial have the same force as a jury's verdict upon jury questions. City of Clute v. City of Lake Jackson, 559 S.W.2d 391, 395 (Tex.Civ.App.--Houston [14th Dist.] 1977, writ ref'd n.r.e.). However, findings of fact are not conclusive when a complete statement of facts appears in the record, if the contrary is established as a matter of law, or if there is no evidence to support the findings. Middleton v. Kawasaki Steel Corp., 687 S.W.2d 42, 44 (Tex.App.--Houston [14th Dist.] 1985), writ ref'd n.r.e., 699 S.W.2d 199 (Tex. 1985) (per curiam). When the trial court acts primarily as a fact finder, the findings are reviewable for legal and factual sufficiency under the same standards that are applied in reviewing evidence supporting a jury's answer. Zieben v. Platt, 786 S.W.2d 797, 799 (Tex.App.--Houston [14th Dist.] 1990, no writ). See also W. Wendell Hall, Standards of Review in Texas, 34 St. Mary's L.J. 1, 183 (2002).

Although findings of fact are reviewable for legal and factual sufficiency, an attack on the sufficiency of the evidence must be directed at specific findings of fact rather than at the judgment as a whole. In re M.W., 959 S.W.2d 661, 664 (Tex.App.--Tyler 1997, no pet.). The rule has often been otherwise stated that if the trial court's findings of fact are not challenged by a point of error on appeal, they are binding upon the appellate court. Northwest Park Homeowners Ass'n, Inc. v. Brundrett, 970 S.W.2d 700, 704 (Tex.App.--Amarillo 1998, pet. denied); Carter v. Carter, 736 S.W.2d 775, 777 (Tex.App.--Houston [14th Dist.] 1987, no writ). However, a challenge to an unidentified finding of fact may be sufficient for review if it is included in the argument of the issue or point, or if after giving consideration to the nature of the case, the underlying applicable legal theories, and the findings of fact provided, the specific finding(s) of fact which the appellant challenges can be fairly determined from the argument. See Holley v. Watts, 629 S.W.2d 694, 696 (Tex. 1982) (citing Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 Tex. L. Rev. 361 (1960).

Sufficiency of Evidence

Considering Brown's issues in logical rather than numerical order, we first consider her eighth point of error by which she contends the trial court erred in terminating her parental rights because the evidence was insufficient. We disagree.

Upon Brown's request, the trial court made five findings of fact, any one of which would support its order of termination under Richardson v. Green, 677 S.W.2d 497, 499 (Tex. 1984), and a separate finding that termination of the parent-child relationship would be in the best interest of L.R.B. However, Brown's challenge to the sufficiency of the evidence is not directed at specific findings of fact. See In re M.W, 959 S.W.2d at 664, and Northwest Park Homeowners Ass'n Inc., 970 S.W.2d at 704. Accordingly, point of error eight is overruled.

No Reversible Error in Admitting Evidence

By points one, two, three, four, five, and seven, Brown alleges error by the trial court in admitting a variety of evidence on hearsay and other grounds. Where, as here, the case was tried without a jury, we generally assume that the trial court disregarded any incompetent evidence, and the admission of any incompetent evidence will generally not require reversal of the judgment where there is competent evidence to authorize its rendition. See Williford v. Submergible Cable Services, Inc., 895 S.W.2d 379, 388 (Tex.App.--Amarillo 1994, no writ).

On May 28, 2002, Brown was incarcerated on a conviction for injury to a child for injuring her first child. At the time of trial, Brown was incarcerated. During her testimony, among other things, she admitted:

• she tested positive for use of methamphetamine while on probation;
• she did not maintain contact with her probation officer and was delinquent in payment of fees;
• she had an addiction and used the drug until she got pregnant;
• L.R.B. was born in John Sealy Hospital while she was in prison and that at the time of trial she had not seen L.R.B.;
• when her first son was born, he tested positive for marijuana and had marijuana in his system when he died;
• she pleaded guilty to injury to a child for "intentionally or knowingly teaching [Brendan] to smoke and inhale the drug marijuana"; and
• she was serving a five year sentence.

Because the admissions of Brown constitute other competent evidence to support one or more of the grounds asserted for the trial court's termination order, we find nothing to prevent the application of the presumption that the trial court disregarded any inadmissible evidence. Points of error one, two, three, four, five, and seven are overruled.

Reunification Efforts

By her sixth contention, Brown argues that termination of her parental rights was erroneous because the Department did not attempt family reunification in violation of the its policies. We disagree.

Brown cites no case or statute supporting her contention, and we have found none. Even if it is presumed that the best interest of the child will be served by preserving the parent-child relationship, a question we do not decide, a separate consideration of alternatives to termination is not required. See Edwards v. Dept. of Protective Servs., 946 S.W.2d 130, 139 (Tex.App.--El Paso 1997, no pet.). Point of error six is overruled.

Section 263.405 Hearing

By her ninth point, without citation of authority, Brown contends the trial court erred when it failed to comply with section 263.405(d). We disagree. The statute provides that the trial court shall hold a hearing to determine whether:

• a new trial should be granted;
• a party's claim of indigence, if any, should be sustained; and
• the appeal is frivolous . . . .

Tex. Fam. Code Ann. § 263.405(d) (Vernon 2002). Here, however, Brown did not file a motion for new trial, Brown's affidavit of indigence was not challenged, and the Department did not contend the appeal was frivolous. Brown makes no showing that the trial court committed reversible error by failing to hold a hearing under those circumstances. Tex. R. App. P. 44.1. Point of error nine is overruled.

Accordingly, the judgment of the trial court is affirmed.

Per Curiam

Johnson, C.J., not participating.