Christopher Duran v. Leslie Ann Smith--Appeal from 245th District Court of Harris County (majority)
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Opinion issued May 3, 2012
In The
Court of Appeals
For The
First District of Texas
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NO. 01-10-00018-CV
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CHRISTOPHER DURAN, Appellant
V.
LESLIE ANN SMITH, Appellee
On Appeal from the 245th District Court
Harris County, Texas
Trial Court Cause No. 2008-75793
MEMORANDUM OPINION
Appellant, Christopher Duran, challenges the trial court’s judgment, entered
after a bench trial, in favor of appellee, Leslie Ann Smith, in Duran’s suit against
Smith seeking appointment as the sole managing conservator of Duran and Smith’s
minor child. In three issues, Duran contends that he received ineffective assistance
of counsel,1 the trial court erred in admitting into evidence two police reports
containing hearsay, and the trial court abused its discretion in granting Smith sole
managing conservatorship, awarding Smith attorney’s fees and costs, and finding
Duran in contempt of the trial court’s orders.
We affirm.
Background
In his petition for divorce from Smith, Duran sought to be appointed sole
managing conservator of their minor child. The trial court conducted a bench trial
during which it heard the testimony of Duran, Smith, and several other witnesses
presented by both parties. After trial, the trial court entered a final decree of
divorce in which it dissolved Duran and Smith’s marriage, appointed Smith sole
managing conservator with possession of the child “at all times,” and appointed
Duran possessory conservator, subject to the conditions set forth in a commitment
order, which the trial court incorporated into the decree.
The trial court denied
Duran access to the child and required him, in its commitment order, to complete a
drug rehabilitation program, an anger management and batterer’s intervention and
prevention program, and a psychological evaluation. The trial court stated that,
1
See U.S. CONST. amends. VI, XIV.
2
upon fulfillment of these terms, it would conduct a review hearing to determine
whether Duran should be granted access to the child.
The trial court further
ordered Duran to pay child support and the attorney’s fees of Smith and the ad
litem.
Sole Managing Conservatorship
In his third issue, Duran argues that the trial court abused its discretion in
appointing Smith sole managing conservator of the child because the evidence
demonstrated that Smith was an “unfit parent and an incompetent role model,” the
trial court was “unduly swayed and prejudiced” by Duran’s “refusal to abide by
certain court . . . orders of visitation,” and the trial court’s decision was based upon
its consideration of inadmissible hearsay and exhibits. Within this issue, Duran
asserts that the trial court abused its discretion in entering an order of contempt
against him, ordering that he be confined, requiring that he complete “rehabilitative
programs,” and assessing “all attorney’s fees and costs” against him.
Although Duran attempts to raise four separate sub-issues within his third
issue, Duran’s briefing on these sub-issues is limited to approximately one and
one-half pages of argument. Within this argument pertaining to the third issue,
Duran does not provide a single citation to the record. Thus, Duran does not
address, in any specific detail, the testimony of six separate witnesses that the trial
court heard over the two-day bench trial. In regard to the sub-issue of contempt,
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Duran’s only argument is that there were “great ambiguous allegations” and “no
one seemed to understand what the specific rules and orders of the court on the
child visitation were.” In regard to his attorney’s-fees challenge, Duran does not
include a single sentence pertaining to this legal issue. The only issue even
arguably preserved in Duran’s third issue is his complaint that the trial court
abused its discretion in appointing Smith sole managing conservator. Accordingly,
we hold that Duran has waived all other sub-issues for our review. See TEX. R.
APP. P. 38.1(i).
In determining issues of conservatorship, “[t]he best interest of the child
shall always be the primary consideration” of the trial court. TEX. FAM. CODE
ANN. § 153.002 (Vernon 2008); In re K.R.P., 80 S.W.3d 669, 674 (Tex. App.—
Houston [1st Dist.] 2002, pet. denied). Trial courts have wide discretion with
respect to custody, control, possession, support, and visitation matters. Gillespie v.
Gillespie, 644 S.W.2d 449, 451 (Tex. 1982); In re K.R.P., 80 S.W.3d at 674. Thus,
we review a trial court’s decision on custody for abuse of discretion. Turner v.
Turner, 47 S.W.3d 761, 763 (Tex. App.—Houston [1st Dist.] 2001, no pet.). A
trial court abuses its discretion when it acts arbitrarily or unreasonably, or without
reference to any guiding rules or principles. Id.
Under an abuse-of-discretion standard, legal and factual insufficiency are
not independent grounds of error, but rather are relevant factors in assessing
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whether the trial court abused its discretion. Bush v. Bush, 336 S.W.3d 722, 729
(Tex. App.—Houston [1st Dist.] 2010, no pet.); Stamper v. Knox, 254 S.W.3d 537,
542 (Tex. App.—Houston [1st Dist.] 2008, no pet.). Within this standard, we
determine whether the trial court (1) had sufficient information on which to
exercise its discretion, i.e., we conduct the applicable sufficiency review, and (2)
erred in its application of discretion. Stamper, 254 S.W.3d at 542.
In a legal-sufficiency review, we consider all of the evidence in the light
most favorable to the verdict and indulge every reasonable inference that would
support it. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). We
consider evidence favorable to the finding if a reasonable fact finder could and
disregard evidence contrary to the finding unless a reasonable fact finder could not.
Id. at 827; Brown v. Brown, 236 S.W.3d 343, 348 (Tex. App.—Houston [1st Dist.]
2007, no pet.). The fact finder is the sole judge of the credibility of the witnesses
and the weight to give their testimony. Bush, 336 S.W.3d at 729. The final test is
“whether the evidence at trial would enable reasonable and fair-minded people to
reach the verdict under review.” City of Keller, 168 S.W.3d at 822.
In a factual-sufficiency review, we consider all the evidence supporting and
contradicting the finding. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445
(Tex. 1989). We set aside the finding only if it is so contrary to the overwhelming
weight of the evidence as to be clearly wrong and manifestly unjust. See Cain v.
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Bain, 709 S.W.2d 175, 176 (Tex. 1986). In regard to whether the trial court abused
its discretion, we determine whether, based on the elicited evidence, the trial court
made a reasonable decision. Stamper, 254 S.W.3d at 542.
Smith testified that Duran was physically and mentally abusive to her and he
subjected her to continuous harassment. She explained that she had sought the
assistance of law enforcement authorities in response to Duran’s physical abuse
and his refusal to abide by court orders. Smith noted a specific incident of assault
when she and Duran, who had previously been convicted of the misdemeanor
offenses of harassment and assault, were exchanging their child. Duran had pulled
on her shoulder in a manner that required her to seek treatment at a hospital. And
their child was present and witnessed Duran abusing Smith. Moreover, Duran, in
violation of prior court orders, had denied her visitation with the child on several
occasions. Smith further noted that Duran had a sporadic employment history and
provided no financial support. Smith denied ever abusing the child and stated that
she had a job and an apartment in which she and the child could live. She stated
that she loved her child and wanted conservatorship of the child. Additionally,
Smith presented the testimony of a police officer who confirmed that Duran had
previously denied Smith access to the child in violation of court orders.
Duran disputed Smith’s testimony regarding his work history and his
physical and mental abuse of Smith. And Duran presented testimony concerning
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Smith’s employment history, lifestyle choices, and substance abuse, all of which
the trial court could have considered in determining whose appointment would be
in the best interest of the child. Duran also presented the testimony of witnesses
that characterized him as a loving and attentive father. Finally, Duran presented
the testimony of a witness who stated that, after being returned by her mother
following a visitation, the child had an abrasion on her face and the child reported
that Smith had hit her.
However, Smith’s counsel and the ad litem elicited
conflicting testimony regarding whether there were any injuries to the child
following the alleged incident, and Smith denied Duran’s allegations that she had
abused the child during this incident.
The trial court was the sole judge of the credibility of the witnesses and was
free to credit Smith’s testimony on conflicting matters. Bush, 336 S.W.3d at 729.
In regard to Duran’s conduct, the trial court was also free to believe Smith’s
testimony that Duran was abusive and had deliberately disregarded court orders to
provide Smith with access to the child. The trial court was also free to consider the
testimony of the witnesses and documentation indicating that Duran, contrary to
court orders, continually denied Smith access to the child.
Duran, on cross-
examination, admitted to denying Smith access, although he testified to various
reasons for denying such access. Duran’s testimony during the ad litem’s crossexamination could also have caused the trial court concern over Duran’s
7
willingness to comply with any future orders regarding custody of the child. We
conclude that Smith presented legally- and factually-sufficient evidence from
which the trial court, acting as fact finder, could have found that appointing Smith
as sole managing conservator was in the best interest of the child. Accordingly, we
hold that the trial court did not abuse its discretion in appointing Smith as sole
managing conservator.
We overrule Duran’s third issue.
Ineffective Assistance
In his first issue, Duran argues that he received ineffective assistance of
counsel because his trial counsel did not make an opening statement, prepare his
witnesses, object to leading questions, object to hearsay evidence or certain
exhibits, object to the introduction of a drug report or the temporary orders, object
to the introduction of various e-mails, object to a police officer “testifying from the
stand and actually reading from an offense report made by another police officer,”
offer any rebuttal witnesses, object to the evidence on attorney’s fees, ask any
questions of the ad litem regarding her attorney’s fees, or make a final argument.
Duran also complains that the trial court had to instruct his trial counsel not to
discuss the case with the witnesses.
In response to Duran’s ineffective-assistance claim, Smith first argues that
there is no right to effective assistance of ounsel in “matters of child custody.” We
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acknowledge that other Texas courts of appeals have concluded that, at least in the
general sense, the right to effective assistance of counsel does not extend to
conservatorship proceedings. See In re G.J.P., 314 S.W.3d 217, 222–23 (Tex.
App.—Texarkana 2010, pet. denied) (stating that Texas courts had not previously
addressed whether “the recognized right to effective assistance of counsel for cases
involving the termination or severance of parental rights also extend[s] to cases in
which only conservatorship is decided”; further stating that “main rationale for
importing the right to effective assistance of counsel into” civil parental-rights
termination proceedings “does not exist in a case where the severance” of parental
right “is not implicated”); In re A.J.M., No. 05–10–00920–CV, 2011 WL 2207103,
at *1 (Tex. App.—Dallas June 8, 2011, no pet.) (mem. op.) (stating that appellant
cited no authority, and court was aware of none, that recognized right of effective
assistance on issues of conservatorship during divorce proceedings,); In re M.J.,
No. 09–09–00355–CV, 2010 WL 3042438, at *4 (Tex. App.—Beaumont Aug. 5,
2010, no pet.) (mem. op.) (stating that in context of divorce proceedings that
resulted in award of “standard visitation” to father, court, in “absence of a
constitutional or statutory provision granting a right to appointed counsel,”
declined to recognize “a right to effective assistance of counsel to a dispute
resolving the division of possession between joint managing conservators”); In re
V.N.S., No. 13-07-00046-CV, 2008 WL 2744659, at *5 (Tex. App.—Corpus
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Christi July 3, 2008, no pet.) (mem. op.) (stating that, in context of proceedings to
modify parental rights, parent had “no constitutionally protected right to effective
assistance of counsel”); see also In re A.D.A., 287 S.W.3d 382, 390 (Tex. App.—
Texarkana 2009, no pet.) (stating that even if father had standing to raise
ineffective assistance of counsel claim regarding child’s attorney ad litem in
conservatorship proceeding, father failed to make any showing of harm).
Here, Duran complains of an order and decree in which he was found to
have committed criminal contempt. Pursuant to the decree and commitment order,
he was committed to the Harris County Jail for a significant period of confinement,
and, after his eventual release from confinement, he was ordered to complete,
among other things, an in-patient drug rehabilitation program. He was also denied
any access to his child. The trial court further ordered that it would conduct a
review hearing to consider whether Duran should be granted any access to the
child only after he had fulfilled several conditions. Since neither party has made
any meaningful effort to discuss the case law and statutes relevant to our analysis
of whether the right to effective assistance of counsel applies in the instant case,
and since the record amply demonstrates that any such claim would fail, we
assume without deciding that such a claim may be brought.
Proving ineffective assistance of counsel requires a showing that (1) counsel
made errors so serious that counsel was not functioning as “counsel” guaranteed by
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the Sixth Amendment and (2) the deficient performance of counsel prejudiced the
defense in a manner “so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.” In re H.R.M., 209 S.W.3d 105, 111 (Tex. 2006) (citing
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052 (1984); In re M.S.,
115 S.W.3d 534, 545 (Tex. 2003)). In adopting the Strickland test for parentalrights termination cases, the Texas Supreme Court has explained that, “taking into
account all of the circumstances surrounding the case,” a court “must primarily
focus on whether counsel performed in a reasonably effective manner.” In re M.S.,
115 S.W.3d at 545. A court “must give great deference to counsel’s performance,
indulging a strong presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance, including the possibility that counsel’s
actions are strategic.” Id. Challenged conduct constitutes ineffective assistance
only when it is “so outrageous that no competent attorney would have engaged in
it.” Id.
The record demonstrates that Duran’s counsel engaged in extensive and
detailed examinations and cross-examinations, as applicable, of the witnesses.
Duran’s counsel presented his client’s testimony, as well as the testimony of three
other witnesses, in support of Duran’s request that he be appointed the child’s sole
managing conservator.
During the bench trial, neither Duran’s nor Smith’s
counsel made formal opening statements or closing arguments, and there is no
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indication in the record as to why each party elected not to make formal statements
or arguments.
The record further reflects that all trial counsel asked leading
questions during the proceedings, and the trial court warned both Duran’s and
Smith’s counsel’s regarding the use of leading questions.
Duran offers no explanation as to why the trial court would not have been
entitled to consider its own temporary orders and Duran’s alleged violation of
those orders in awarding conservatorship. Duran also offers no explanation as to
why the telephone conversations and e-mails containing his statements and
admitted into evidence would have been inadmissible had his trial counsel
objected. Duran’s counsel may have simply chosen not to object to the admission
of many of the admitted exhibits because he determined that the exhibits ultimately
would have been ruled admissible had any challenges been asserted.
In regard to the testimony of Houston Police Department Officer M. Moses,
he explained that he responded to a call for assistance regarding “interference with
child custody” on July 5, 2009. Although Moses agreed that he was not the initial
responding officer and did not prepare the offense report, Moses explained that he
went to the scene because Duran had requested that the responding officer summon
a supervisor. Moses reviewed the offense report and testified that it contained a
true and accurate representation of what occurred at the scene. Duran does not
challenge Moses’s ability to testify as to what he actually observed at the scene,
12
and the record indicates that Moses’s testimony was cumulative of much of the
information contained within the offense report. Moses’s testimony also reflects
that he personally spoke with Duran after receiving the call for assistance and he
worked with Duran to resolve the situation. Ultimately, Moses informed Duran
that the officers would not arrest Smith in response to his allegations that Smith
had outstanding warrants for her arrest. Moses also informed Duran that the child
custody order granting Smith access to the child appeared to be valid and Duran
should provide Smith with custody of the child. Moses explained that after Duran
had refused to turn the child over to Smith, he called the Harris County District
Attorney’s office to see if the State would accept criminal charges against Duran
for interference with child custody. Duran’s counsel likely had no basis on which
to object to Moses’s testimony concerning the basic facts of the incident, and he
may have determined that it would have been less damaging to allow the admission
of the offense report into evidence rather than requiring more live testimony.
Officer Moses also testified concerning another police offense report
prepared on July 19, 2009 in response to a similar incident in which he was not
directly involved. However, this second incident was discussed only briefly during
the trial, and Duran’s counsel could have determined that any objection to this
second report would simply have resulted in Smith presenting more detailed and
damaging evidence from a second police officer.
13
In regard to the presentation of witnesses, although the record reveals that
Duran’s trial counsel did not have his witnesses immediately available upon the
commencement of testimony, the record further reveals that Duran’s counsel, after
examining Smith, presented the testimony of several witnesses who offered
testimony favorable to Duran’s efforts to obtain conservatorship. Duran does not
assert that he was precluded from offering the testimony of any additional, specific
witnesses, and he does not identify any rebuttal witnesses that he contends should
have testified. Nor does Duran identify any topics on which rebuttal testimony
would have been helpful.
Finally, in regard to attorney’s fees, Duran does not contend that the fees
testified to by both Smith’s counsel and the ad litem were unreasonable or
excessive. Duran also does not identify on what basis his counsel should have
objected to their testimony regarding attorney’s fees. The record reflects that
Smith’s counsel testified to incurring $14,000 in attorney’s fees and the ad litem
testified that she was owed an outstanding balance of $8,000 in attorney’s fees.
Duran’s counsel may have determined that the amounts testified to by both counsel
were reasonable and supported by the evidence.
We note that Duran’s counsel
was also permitted to offer his testimony in support of his request for attorney’s
fees, which totaled approximately $10,000, and neither Smith’s counsel nor the ad
litem objected to the testimony.
14
In sum, we conclude that Duran has not demonstrated that his counsel
provided ineffective assistance. Considering the circumstances surrounding the
case, none of Duran’s complaints, “individually or combined, overcomes the
strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” In re H.R.M., 209 S.W.3d at 111. Moreover,
Duran has not demonstrated that his counsel’s alleged failures to present additional
witnesses and exhibits, make objections to leading questions or hearsay, or make
an opening statement and closing argument “prejudiced the case, deprived him of a
fair trial, or produced an unreliable result.” Id. Accordingly, we hold that, even
assuming that Duran is entitled to make a claim of ineffective assistance of
counsel, he has not shown that he received such ineffective assistance.
We overrule Duran’s first issue.
Hearsay
In his second issue, Duran argues that the trial court erred in admitting into
evidence the July 5, 2009 and July 19, 2009 police offense reports concerning the
two instances in which police officers responded to the custody dispute between
Duran and Smith.
We review a trial court’s decision to admit or exclude evidence for an abuse
of discretion. In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005). To obtain reversal
of a judgment based on error in the admission or exclusion of evidence, an
15
appellant must show that the trial court’s ruling was in error and the error (1)
probably caused the rendition of an improper judgment or (2) probably prevented
the appellant from properly presenting the case to the court of appeals. TEX. R.
APP. P. 44.1.
In determining if the excluded evidence probably resulted in the
rendition of an improper judgment, we review the entire record, and, “[t]ypically, a
successful challenge to a trial court’s evidentiary rulings requires the complaining
party to demonstrate that the judgment turns on the particular evidence excluded or
admitted.” Interstate Northborough P’ship v. State, 66 S.W.3d 213, 220 (Tex.
2001). Ordinarily, we will not reverse a judgment because a trial court erroneously
excluded evidence when the evidence in question is cumulative and not controlling
on a material issue dispositive to the case. Id.
The July 5, 2009 offense report contains information cumulative of Moses’s
direct testimony. The report also contains a summary of Smith’s and Duran’s
statements that they provided to the police officers at the scene. Both Duran and
Smith also testified concerning Duran’s refusal to provide Smith access to the
child. The July 19, 2009 report is labeled a “supplemental” report and contains a
very brief summary of Smith’s allegations that she was being denied access to the
child contrary to the terms of a court order. Much of the information contained in
both of these reports was cumulative of Officer Moses’s testimony and of the
testimony presented by both Duran and Smith.
16
The reports themselves were
discussed only briefly on the record. We conclude that, to the extent the trial court
erred in admitting any portions of these reports, such error did not probably cause
the rendition of an improper judgment or prevent Duran from properly presenting
the case to this Court. See TEX. R. APP. P. 44.1. Accordingly, we hold that any
error in the admission of the reports did not constitute reversible error.
We overrule Duran’s second issue.
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice
Panel consists of Justices Jennings, Massengale, and Huddle.
17
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