in the Interest of S.T., a Child , 242 S.W.3d 923 ( 2008 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-07-00306-CV

In the Interest of S.T. and B.T., Children

From the 272nd District Court

Brazos County, Texas

Trial Court No. 06-002071-CV-272

ORDER

            In this Order, we address procedural issues relating to Donald Taylor’s appeal of the trial court’s finding under section 263.405(d)(3) of the Family Code that his appeal is frivolous.  See Tex. Fam. Code Ann. § 263.405(d)(3) (Vernon Supp. 2007).  To ensure that Taylor’s right to due process is not violated, we will order the court reporter to file a record of all evidence admitted at trial, and we will set a briefing schedule for the parties.

            In a prior order, this Court held that: (1) the trial court abused its discretion by finding that Taylor failed to prove his indigence; (2) the appeal must be abated for appointment of counsel; and (3) Taylor or another party must provide a reasonable explanation for the late filing of Taylor's request for preparation of the clerk’s record or this appeal would be dismissed.  In re S.T., No. 10-07-00306-CV, 2007 Tex. App. LEXIS 9252, at *15-16 (Tex. App.—Waco Nov. 28, 2007, order) (per curiam).  The trial court has appointed appellate counsel for Taylor.  Taylor’s trial counsel filed a response to the Court’s order explaining the late request for preparation of the clerk’s record.  Taylor’s newly appointed counsel has filed a “brief” in which counsel requests that this Court order “preparation of a full appellate record” and permit briefing on the merits.

            Trial counsel explains that she believed her representation of Taylor ended at the conclusion of the indigence hearing, particularly in light of Taylor’s allegation that she provided ineffective assistance at trial.  In addition, counsel explains that she did not understand the jurisdictional and procedural implications which attach to the timely filing of a clerk’s record in an indigence/frivolousness appeal under section 263.405(g).

            Appellate counsel also observes that the trial court informed the parties at the conclusion of the hearing on Taylor’s indigence claim and on his statement of points that the court reporter would prepare and file a record of that hearing for review in this Court.  Thus, counsel contends that Taylor could have reasonably inferred from the trial court’s statement that preparation and filing of the appellate record would occur without further action on his part.

            These explanations constitute a “plausible statement of circumstances indicating that failure to file within the [specified] period was not deliberate or intentional, but was the result of inadvertence, mistake or mischance.”  Hone v. Hanafin, 104 S.W.3d 884, 886 (Tex. 2003) (per curiam) (quoting Meshwert v. Meshwert, 549 S.W.2d 383, 384 (Tex. 1977)); In re D.M., No. 10-06-00407-CV, 2007 Tex. App. LEXIS 9764, at *2-4 (Tex. App.—Waco Dec. 12, 2007, no pet. h.) (op. on reh’g); Doe v. Brazoria County Child Protective Servs., 226 S.W.3d 563, 571  (Tex. App.—Houston [1st Dist.] 2007, no pet.).  Therefore, because reasonable explanations have been provided for the late filing of Taylor's request for preparation of the clerk’s record, we grant the implied motion for extension and hold that Taylor’s appeal was timely perfected.

            The Fort Worth Court of Appeals has concluded that, when one of the points for appeal is factual insufficiency, a court reporter must file a transcription of “all of the evidence admitted” at trial at no cost to the appellant.  See In re M.R.J.M., 193 S.W.3d 670, 674 (Tex. App.—Fort Worth 2006, order); see also In re K.D., 202 S.W.3d 860, 866 (Tex. App.—Fort Worth 2006, no pet.).   By contrast, the Beaumont Court of Appeals has concluded that an appellate court can, consistent with due process, decide whether a factual sufficiency issue is frivolous without a trial record. See In re A.S., No. 09-07-236-CV, 2007 Tex. App. LEXIS 8135, at *3-6 (Tex. App.—Beaumont Oct. 11, 2007, no pet.).

            Taylor’s counsel cites the dissenting opinion authored by the Chief Justice in response to this Court’s November 28 Order to support his contention that we should follow the Fort Worth Court and require the filing of reporter’s record of “all of the evidence admitted” at trial at no cost to himself.

[T]he only way we can review the trial court’s decision is to have before us the same information the trial court did, including the information of which the trial court took judicial notice.  The only way for us to do that is to have the reporter’s record of the trial proceedings of which the trial

court took judicial notice.

In re S.T., 2007 Tex. App. LEXIS 9525, at *18-19 (Tex. App.—Waco Dec. 3, 2007) (Gray, C.J., dissenting).

            Based on the decision of the Supreme Court of the United States in Draper v. Washington, 372 U.S. 487, 83 S. Ct. 774, 9 L. Ed. 2d 899 (1963), we agree with the Fort Worth Court’s approach. In Draper, the Supreme Court considered procedural rules remarkably similar to section 263.405, which required an indigent criminal defendant to establish to the satisfaction of the trial court that he was indigent and that his appeal presented errors which were not frivolous as preconditions to the provision of a statement of facts at county expense.  Id. at 489-90, 83 S. Ct. at 775-76.  Applying an equal-protection analysis, the Court concluded that these rules were unconstitutional.

[T]his Court [has] held that “(t)he conclusion of the trial judge that there was no reversible error in the trial cannot be an adequate substitute for the right to full appellate review available to all defendants in Washington who can afford the expense of a transcript.”  We hold today that the conclusion of the trial judge that an indigent’s appeal is frivolous is a similarly inadequate substitute for the full appellate review available to nonindigents in Washington, when the effect of that finding is to prevent an appellate examination based upon a sufficiently complete record of the trial proceedings themselves.

Id. at 499-500, 83 S. Ct. at 781 (quoting Eskridge v. Wash. State Bd. of Prison Terms & Paroles, 357 U.S. 214, 216, 78 S. Ct. 1061, 1062, 2 L. Ed. 2d 1269 (1958) (per curiam)).

            Although Draper is grounded in equal protection, the same principles apply to section 263.405.  Section 263.405 does not expressly treat indigent and non-indigent appellants differently, but the net result is the same.  For example, if the trial court finds that the grounds for appeal presented by a non-indigent appellant are frivolous, then the non-indigent appellant may pay for a complete trial record to be filed with the appellate court for a thorough review of the frivolousness determination.  Section 263.405 does not prohibit such a review.  Rather, the statute (like the rules in Draper) limits the scope of the appellate record available to an indigent appellant without cost if the grounds for appeal are found frivolous by the trial court.

            Taylor’s grounds for appeal include: (A) five legal and factual insufficiency claims; (B) an ineffective assistance of counsel complaint; and (C) two claims that the court abused its discretion in particular rulings.  Therefore, we hold as a matter of due process that, because Taylor has raised legal and factual insufficiency claims, the court reporter shall file a transcription of “all of the evidence admitted” at trial at no cost to the appellant.[1]  See M.R.J.M., 193 S.W.3d at 674; see also K.D., 202 S.W.3d at 866.  The reporter’s record shall be filed within twenty-one (21) days after the date of this Order.

            Taylor also contends that this Court should order the parties to file briefs on the merits of his claims.  While there is some merit to this contention from the standpoint of judicial economy, section 263.405(g) clearly limits this Court’s review at this juncture to the issue of whether Taylor’s appeal is frivolous.  Tex. Fam. Code Ann. § 263.405(g) (Vernon Supp. 2007); S.T., 2007 WL 4200752, at *1; In re R.A.P., No. 14-06-00109-CV, 2007 WL 174376, at *2 (Tex. App.—Houston [14th Dist.] Jan. 25, 2007, no pet.) (mem. op.); K.D., 202 S.W.3d at 865.  Therefore, we limit our briefing request to this issue.

            As part of this briefing, the parties should address applicable standards of review and the appropriate disposition for the appeal in the event this Court either upholds the trial court’s frivolousness determination or reverses that determination.  Taylor’s brief shall be filed within twenty (20) days after the reporter’s record is filed. The Department’s brief shall be filed within fifteen (15) days after Taylor’s brief is filed.

            Because this appeal is accelerated, the Court hereby advises the court reporter and the parties that the deadlines set forth in this Order shall take precedence over any other deadlines which they may currently have in cases pending in this Court.  Any extension of the deadlines set forth in this Order will be considered for only the most extenuating of circumstances.

PER CURIAM

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray dissents to the order as follows: “The rulings that a majority of this court are willing to make without the benefit of briefing, or even having the issue raised by the parties, never ceases to amaze me.  They are writing rules by a published order, deciding an equal protection argument not raised by anyone, and completely ignoring the State and any arguments it might make to protect the child.  I dissent.”

Order issued and filed January 9, 2008

Publish

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[1]               This record should provide for full appellate review of Taylor’s legal and factual insufficiency claims.  If Taylor believes additional portions of the record are necessary for review of the other grounds raised, then he must file a motion with this Court within ten days after the date of this Order demonstrating the need for such additional portions.

al style='text-align:justify;text-indent:.5in;line-height:200%'>To prove drug possession, the State must show 1) a defendant exercised care, custody, control, or management over the contraband, and 2) that he knew he possessed a controlled substance.  Rischer v. State, 85 S.W.3d 839, 843 (Tex. App.—Waco 2002, no pet.).  A defendant's knowing possession of contraband may not be proved merely by his presence at the scene when the drugs were found, unless the defendant had been in exclusive possession of that location.  See Hudson v. State, 128 S.W.3d 367, 374 (Tex. App.—Texarkana 2004, no pet.).  The control over the contraband need not be exclusive, but can be jointly exercised by more than one person.  Cude v. State, 716 S.W.2d 46, 47 (Tex. Crim. App. 1986).

When the accused is not in exclusive control of the place where the contraband is found, the State must show additional affirmative links between the accused and the contraband to show his or her knowledge of or control over the contraband.  Id.  Factors which have been considered affirmative links include: 1) presence when the search was executed; 2) contraband in plain view; 3) proximity to and accessibility of the contraband; 4) the accused being under the influence of contraband when arrested; 5) the accused's possession of other contraband when arrested; 6) the accused's incriminating statements when arrested; 7) attempted flight; 8) furtive gestures; 9) odor of the contraband; 10) presence of other contraband; 11) the accused's right to possession of the place where contraband was found; and 12) drugs found in an enclosed place.  Id.  The number of factors present is not as important as the "logical force" or the degree to which the factors, alone or in combination, tend affirmatively to link the accused to the contraband.  See Bellard v. State, 101 S.W.3d 594, 599 (Tex. App.—Waco 2003, pet. ref’d).  Furthermore, the defendant must be affirmatively linked to the contraband itself rather than the area where it was found.  Mendoza v. State, 583 S.W.2d 396, 399 (Tex. Crim. App. 1979).

Johnson argues that he did not smell of marihuana or appear under the influence when he was arrested.  The State argues that Johnson was a passenger in the vehicle when it was searched.  The marihuana was in plain view in the center dash ashtray of the vehicle, in close proximity to Johnson.  Additionally, incident to his arrest for the marihuana possession, Johnson was found to have a bag of crack cocaine and a wire wisk.

In viewing the evidence in the light most favorable to the verdict, we cannot say that the factfinder was not rationally justified in finding that Johnson possessed the marihuana.  See Curry, 30 S.W.3d at 406.  Accordingly, we find that the evidence is legally sufficient to support a finding that Johnson knowingly possessed marihuana as alleged.  We overrule Johnson’s issues two and four.

Confidential Informant

In his last three issues, Johnson contends that the trial court erred when it refused to disclose the informant’s identity in open court and hold an in-camera hearing to evaluate the informant’s reliability.  Johnson asserts that disclosure of the informant’s identity is necessary because there was a reasonable probability that the confidential informant would be a material witness to his guilt or innocence.

We review a trial court's denial of a motion to disclose a confidential informant under an abuse of discretion standard.  Taylor v. State, 604 S.W.2d 175, 179 (Tex. Crim. App. [Panel Op.] 1980). Under that standard, a trial court's decision is disturbed on appeal only when it falls outside the zone of reasonable disagreement.  Jones v. State, 944 S.W.2d 642, 651 (Tex. Crim. App. 1996).  Generally, the State has a privilege to refuse to disclose the identity of a confidential informant who has furnished information to a law enforcement officer conducting an investigation.  See Tex. R. Evid. 508(a).  There are three exceptions that may require the State to disclose the identity of the informant.  See Tex. R. Evid. 508(c)(1)-(3).  Johnson relies on the second exception, which provides in pertinent part:

Testimony on Merits. If it appears from the evidence in the case or from other showing by a party that an informer may be able to give testimony necessary to a fair determination of … guilt or innocence in a criminal case, and the public entity invokes the privilege, the court shall give the public entity an opportunity to show in camera facts relevant to determining whether the informant can, in fact, supply that testimony.

Tex. R. Evid. 508(c)(2).

The defendant bears the initial burden of showing that the confidential informant may be able to give testimony necessary to a fair determination of the defendant's guilt or innocence.  Id.  This initial burden has been described as a "plausible showing."  Bodin v. State, 807 S.W.2d 313, 318 (Tex. Crim. App. 1991).  "Evidence from any source, but not mere conjecture or speculation must be presented to make the required showing that the informant's identity must be disclosed."  Id.  If the defendant meets the burden of making the preliminary showing, then the trial court is required to hold an in-camera hearing.  See Bailey v. State, 804 S.W.2d 226, 230 (Tex. App.—Amarillo 1991, no pet.).  The in-camera hearing provides the State the opportunity to show facts that rebut the defendant's preliminary showing.  Id.

Whenever an informant is an eyewitness to an alleged offense, then that informant can give testimony necessary to a fair determination of the issue of guilt or innocence.  Anderson v. State, 817 S.W.2d 69, 72 (Tex. Crim. App. 1991).  However, when the informant's information is used only to establish probable cause and the informant was not a participant in the offense for which the defendant is charged, the identity of the informant need not be disclosed because his testimony is not essential to a fair determination of guilt.  See Washington v. State, 902 S.W.2d 649, 656-57 (Tex. App.—Houston [14th Dist.] 1995, pet. ref'd).

Johnson reasons that the initial detention of McGee’s vehicle was based on the tip of the informant, and he argues that several cases have held that a defendant can satisfy the initial burden by showing that the confidential informant was an eyewitness to the search or participated in the transaction for which the defendant was indicted.  See Anderson, 817 S.W.2d at 72; Bodin, 807 S.W.2d at 318; Sanchez v. State, 98 S.W.3d 349, 356 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d).

Here, the informant could offer no testimony about the actual offense.  There is no evidence that the confidential informant participated in the offense for which Johnson was charged, nor is there evidence the informant was an eyewitness to the search.  The informant’s testimony would only be relevant to the issue of probable cause, thus making it unnecessary for the identity of the informant to be disclosed.  Washington, 902 S.W.2d at 657.  Consequently, the trial court did not abuse its discretion in refusing to hold an in-camera hearing or to disclose the identity of the informant.  Ford v. State, 179 S.W.3d 203, 210 (Tex. App.—Houston [14th Dist.] 1995, pet. ref’d).  We overrule Johnson’s sixth and eighth issues.[1]

Conclusion

Having overruled all of Johnson’s issues, we affirm the trial court's judgments.

BILL VANCE

Justice

Before Chief Justice Gray,

            Justice Vance, and

            Justice Reyna

Affirmed

Opinion delivered and filed May 14, 2008

Do not publish

[CRPM]

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[1] In Johnson’s seventh issue, he argues that the trial court erred when it denied him the right to confront and cross-examine the informant by refusing to disclose his identity, as the credibility of the informant was the basis for the initial detention, in violation of his rights to due process of law and equal protection.  Our resolution of issues six and eight are dispostive of this issue.