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 2011-08

Marquaus Simmons v. State ( 2011 )


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                                                             In The

                                                    Court of Appeals

                            Sixth Appellate District of Texas at Texarkana

     

                                                    ______________________________

     

                                                                 No. 06-11-00055-CR

                                                    ______________________________

     

     

                                        MARQUAUS SIMMONS, Appellant

     

                                                                    V.

     

                                         THE STATE OF TEXAS, Appellee

     

     

     

     

                                          On Appeal from the 102nd Judicial District Court

                                                              Red River County, Texas

                                                             Trial Court No. CR 00838

     

                                                   

     

     

     

                                              Before Morriss, C.J., Carter and Moseley, JJ.

                                                Memorandum Opinion by Justice Moseley

                                                         MEMORANDUM OPINION

               

                Marquaus Simmons appeals from the revocation of his community supervision on his plea of true and the imposition of a sentence of eight years’ imprisonment.  The State filed a motion to revoke for failure to pay fees, restitution, and fines, his commission of subsequent offenses, and use of marihuana.  At the hearing, evidence was introduced in the form of testimony from an adult community supervision officer and copies of convictions, and Simmons pled true to each ground alleged.  The trial court revoked his community supervision and sentenced him to eight years’ confinement. 

                Simmons’ attorney on appeal has filed a brief which discusses the record and reviews the proceedings in detail. Counsel has thus provided a professional evaluation of the record demonstrating why, in effect, there are no arguable grounds to be advanced.  This meets the requirements of Anders v. California, 386 U.S. 738 (1967); Stafford v. State, 813 S.W.2d 503 (Tex. Crim. App. 1981); and High v. State, 573 S.W.2d 807 (Tex. Crim. App. [Panel Op.] 1978).

                Counsel mailed a copy of the brief and a letter to Simmons on May 16, 2011, informing Simmons of his right to file a pro se response and of his right to review the record.  No response has been filed.  Counsel has also filed a motion with this Court seeking to withdraw as counsel in this appeal.

                We have determined that this appeal is wholly frivolous.  We have independently reviewed the clerk’s record and the reporter’s record, and find no genuinely arguable issue.  See Halbert v. Michigan, 545 U.S. 605, 623 (2005).  We, therefore, agree with counsel’s assessment that no arguable issues support an appeal.  See Bledsoe v. State, 178 S.W.3d 824, 826–27 (Tex. Crim. App. 2005). 

                We affirm the judgment of the trial court.[1]

     

     

                                                                            Bailey C. Moseley

                                                                            Justice

     

    Date Submitted:          August 4, 2011

    Date Decided:             August 5, 2011

     

    Do Not Publish


    [1]Since we agree this case presents no reversible error, we also, in accordance with Anders, grant counsel’s request to withdraw from further representation of appellant in this case.  No substitute counsel will be appointed.  Should appellant wish to seek further review of this case by the Texas Court of Criminal Appeals, appellant must either retain an attorney to file a petition for discretionary review or appellant must file a pro se petition for discretionary review.  Any petition for discretionary review must be filed within thirty days from the date of either this opinion or the last timely motion for rehearing that was overruled by this Court.  See Tex. R. App. P. 68.2.  Any petition for discretionary review must be filed with this Court, after which it will be forwarded to the Texas Court of Criminal Appeals along with the rest of the filings in this case.  Should a petition for discretionary review be filed after September 1, 2011, it should be filed directly with the Texas Court of Criminal Appeals.  See Tex. R. App. P. 68.3.  Any petition for discretionary review should comply with the requirements of Rule 68.4 of the Texas Rules of Appellate Procedure.  See Tex. R. App. P. 68.4.

    -footnote-id:ftn5' href="#_ftn5" name="_ftnref5" title="">[5]  Pursuant to the request to reopen the evidence, the trial court interviewed J.R.K. a second time.  Although there is no record of a hearing at the time of the second interview, it is apparent the trial court changed its custody decision in favor of Robert at that time.  This fact was clarified at an August 29 hearing, the purpose of which (both parties believed) was to offer evidence regarding conservatorship.[6]  The trial court indicated that it previously reopened the evidence (at the prior hearing for which there is no record), interviewed J.R.K., and made a permanent change of custody in favor of Robert at that time.  The trial court reopened the evidence for the sole purpose of conducting a second interview with J.R.K.  The final order thereafter awarded Robert the exclusive right to designate the primary residence of J.R.K. 

                A trial court’s modification of conservatorship is reviewed for abuse of discretion.  In re P.M.B., 2 S.W.3d 618, 621 (Tex. App.—Houston [14th Dist.] 1999, no pet.).  It is an abuse of discretion for a trial court to rule without supporting evidence.  Id. (citing Gen. Tire, Inc. v. Kepple, 970 S.W.2d 520, 525 (Tex. 1998)).

                The rules of procedure in cases affecting the parent-child relationship are the same as those in civil cases generally.  Tex. Fam. Code Ann. § 105.003(a) (West 2008).  Because the competing motions for modification were considered jointly at the final hearing (as extended by the subsequent reopening of the evidence) both Glenna and Robert had the burden to prove their competing claims.  See Tex. R. Civ. P. 262, 265(b).  Glenna was entitled to the opportunity to introduce evidence.  See Tex. R. Civ. P. 265(d).  In a suit seeking to modify the parent-child relationship, the proponent must establish that modification would be in the best interest of the child and:

    (1) the circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed since the earlier of:

     

                (A) the date of the rendition of the order; or

     

                (B) the date of the signing of a mediated or collaborative law settlement    agreement on which the order is based;

     

    (2) the child is at least 12 years of age and has expressed to the court in chambers as provided by Section 153.009 the name of the person who is the child’s preference to have the exclusive right to designate the primary residence of the child; or

     

    (3) the conservator who has the exclusive right to designate the primary residence of the child has voluntarily relinquished the primary care and possession of the child to another person for at least six months.

     

    Tex. Fam. Code Ann. § 156.101 (West Supp. 2010).

     

                In response to Glenna’s claims that she was not afforded the opportunity to present evidence, Robert contends the trial court heard ample evidence at the temporary hearing and again at the final hearing to permit a ruling on modification.[7]  Robert cites testimony from the temporary hearing, but does not claim such evidence supports either a material and substantial change in circumstances or the best interests of the child.  Moreover, this testimony was not introduced or admitted as evidence at the final hearing. Accordingly, the evidence from the hearing on temporary orders could neither be considered by the trial court in reaching its final orders, nor by this Court on reviewing the final order. In re M.B.D., No. 06-10-00015-CV, 2011 WL 1709895, at *2 (Tex. App.—Texarkana May 6, 2011, no pet.) (mem. op.); May v. May, 829 S.W.2d 373, 376 (Tex. App.—Corpus Christi 1992, writ denied).

                Robert further contends that evidence at the final hearing supports the modification order.  Robert testified that he is now married and has a new baby.  Further, J.R.K. was close to Robert’s family, who live in the area.  Glenna was considering a move in order to increase her income and had spoken to J.R.K. about the case.  Robert had no intent to move from the area or to change J.R.K.’s school.  Robert was steadily employed, had a close relationship with his son, and J.R.K. wanted to live with him.  Robert maintains that this evidence represents a material and substantial change in the circumstances of the parties since the decree of divorce was entered.  Robert further contends that the modification is in the child’s best interests, because the split time possession schedule was not a workable arrangement for J.R.K. Glenna talked to the child about custody and did not tell him of her desire to move from the area.  On the other hand, Robert claims that, because he is now remarried, has a new baby, intends to live in the same place, and has a large family in the area with whom J.R.K. is close, the modification is in J.R.K.’s best interests.

                Robert cites the foregoing testimony in support of his contention that the trial court did not make a ruling without hearing evidence and that this evidence is both legally and factually sufficient to support the judgment.  Indeed, the trial court had before it the foregoing evidence in advance of its ruling. Glenna complains, however, that she was denied the opportunity to present her own evidence regarding conservatorship.  Glenna’s brief testimony at the earlier hearing centered on geographical restrictions and child support.  This testimony was offered only after the trial court made a ruling on the record that primary conservatorship would be with Glenna.  In advance of that ruling, Glenna had expressly reserved her right “to put on evidence as to why he ought to be with mom rather than dad,” if J.R.K. had indicated he wanted to reside with his father.  Once the trial court ruled in her favor, there was no need for Glenna to offer such evidence.

                When the evidence was reopened for the purpose of a second interview by the trial court with J.R.K., Glenna was denied the opportunity to present evidence regarding conservatorship.  At the August hearing, the following exchange took place between counsel for Glenna and the trial court:

                [Attorney for Petitioner]:  We had an agreement back in May, that agreement covered everything from custody to the motion to enforcement and contempt.  Since that agreement is blown out of the water now, and you said you would allow them to reopen, then we’re prepared to put on evidence of our motion for enforcement and contempt.  We also wanted to put on evidence in response to their motion to reopen.

     

                . . . .

     

                THE COURT:  My position is that - - when I talked to the child, I made the permanent change at that time.    

     

                [Attorney for Petitioner]:  That was not the way I understood that, Judge.

     

                . . . .

     

                THE COURT:  As far as I’m concerned, I’m ready to sign a final order.   

     

                After this hearing, Glenna filed a formal bill of exception, setting forth the testimony she would have given if provided the opportunity to do so.  After a brief hearing with respect to this formal bill, the trial court denied the bill.[8]  In an evidentiary context, a bill of exception is to tender evidence for the record when a trial court refuses to admit evidence and counsel then provides that evidence for appellate review.  See Tex. R. App. P. 33.2.  For a bill of exception, the evidence must have been presented to the trial court at trial or no error is shown.  Spivey v. James, 1 S.W.3d 380, 385 (Tex. App.—Texarkana 1999, pet. denied); Clone Component Distribs. of Am., Inc. v. State, 819 S.W.2d 593, 596–97 (Tex. App.—Dallas 1991, no writ) (bill of exception must show evidence was actually offered and excluded).  Here, the proffered testimony was not actually offered and excluded.  While there was a request to present testimony, the trial court did not hear the proffered testimony before excluding it.  Rather, the trial refused Glenna’s request to testify.  In this case, the filing of a formal bill of exception was unnecessary.

                Normally, a complaint regarding the exclusion of evidence can be made on appeal only if the appellate record reflects the substance of the excluded evidence.  Tex. R. Evid. 103(a)(2).  This can be done through a formal or an informal bill of exception (offer of proof).  See Bobbora v. Unitrin Ins. Servs., 255 S.W.3d 331, 335 (Tex. App.—Dallas 2008, no pet.)  This rule does not apply, however, when the trial court refuses to permit the appellant to present any evidence.  See Producer’s Constr. Co. v. Muegge, 669 S.W.2d 717, 719 (Tex. 1984); Safway Scaffold Co. of Houston, Inc. v. Safway Steel Prods., Inc., 570 S.W.2d 225, 229 (Tex. App.—Houston [1st Dist.] 1978, writ ref’d n.r.e.). When the appellant is not allowed to present any evidence at trial and the appellant objected to this action, there is no necessity for a bill of exception.  Safway Steel Prods., Inc., 570 S.W.2d at 229.

                Here, once the trial court reopened the evidence and J.R.K. opted for Robert, Glenna sought, but was denied, the right to submit evidence on point.[9]  We hold that the trial court thus erred in denying Glenna the opportunity to present evidence in support of her motion.  See Tex. R. Civ. P. 262, 265.  We need not address the issue of whether the trial court abused its discretion based on the alleged legal and factual insufficiency of the evidence.[10]

                We reverse the trial court’s order and remand to the trial court for further proceedings consistent with this opinion.

     

     

                                                                                        Josh R. Morriss, III

                                                                                        Chief Justice

     

    Date Submitted:          June 24, 2011 

    Date Decided:             July 8, 2011

     

     


    [1]Robert’s attorney made the following statement to the trial court:  “[W]e have a split-time arraignment [sic].  Both parties have filed for the custody.  Like I said, he’s now 11 years old.  Whatever he wants to do, my client said is fine.” 

     

    [2]Glenna’s attorney stated, “I think everybody anticipates that he’s going to say he wants to live with mom.  If, for some reason, he doesn’t say that, then I’m going to have to be in the position of having to put on evidence as to why he ought to be with mom rather than dad.” 

     

    [3]The remainder of the hearing centered on whether Lamar County residency restrictions should remain in place for Glenna and whether Robert’s child support payments should be modified.

     

    [4]Robert was granted visitation in accordance with the standard possession order.  The trial court increased Robert’s child support payments and denied Glenna’s request to lift the Lamar County residency restriction. 

     

    [5]Glenna opposed the motion to reopen, claiming the request was not the result of new evidence or an inadvertent mistake. According to Robert’s affidavit, J.R.K. had a change of heart.  The timing of this change coincided with Robert’s extended summer possession period with J.R.K.

     

    [6]Counsel for Robert stated, “We had a hearing a few months ago and changed custody to the mother.  Subsequent to that time, we filed a motion to reopen.  You interviewed the child again.  He wanted to live with the father.  You switched it back to the father.  Mr. Starnes, at that time that we had that hearing on the motion to reopen, asked to put on evidence to you.  And I believe that’s what we’re here about today.” 

    [7]Robert further contends Glenna could have presented her evidence at the final hearing, but failed to do so.  Robert does not claim Glenna waived her right to offer evidence.

    [8]Counsel for Robert objected to the formal bill of exception, contending that the trial court could not know what Glenna’s testimony would have been.  The trial court then stated, “I’m going to deny it.” 

     

    [9]Glenna had no opportunity to offer evidence of a material and substantial change of circumstance or why it was in the child’s best interests to live with her.

     

    [10]Counsel for Glenna indicated at the August hearing that there was an agreement that Glenna be named joint managing conservator with the exclusive right to determine the child’s primary residence and that, in exchange, neither party would pursue their respective motions for enforcement.  No such agreement was dictated into the record.  Even though Glenna also filed a motion for enforcement of back due child support, she does not claim on appeal that she should be entitled to present evidence regarding that issue.