In the Interest of D.E., III, A Child--Appeal from 285th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-02-00825-CV
IN THE INTEREST OF D.E., III, a Child,
From the 285th Judicial District Court, Bexar County, Texas
Trial Court No. 2001-PA-00773
Honorable Martha Tanner, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Alma L. L pez, Chief Justice (concurring in judgment only)

Catherine Stone, Justice

Sarah B. Duncan, Justice

Delivered and Filed: May 28, 2003

AFFIRMED

David Espitia, Jr. appeals the trial court's judgment terminating the parent-child relationship between him and D.E. We affirm.

1. Espitia argues the trial court reversibly erred in submitting a charge that failed to ensure that at least ten jurors agreed on the same ground for termination. We disagree. The error, if any, is harmless since the evidence conclusively establishes Espitia is serving an eighteen year sentence for a March 2000 conviction for aggravated robbery; and he will not even be eligible for parole until he has served nine years. Therefore, the evidence conclusively establishes one of the submitted grounds for termination under section 161.001(1) - Espitia "knowingly engaged in criminal conduct that has resulted in [his]: (i) conviction of an offense, and (ii) confinement or imprisonment and inability to care for [D.E.] for not less than two years from the date of filing the petition." See Tex. Fam. Code Ann. 161.001(1)(Q) (Vernon 2002); In re J.F.C., 96 S.W.3d 256, 279 (Tex. 2002) (holding that when evidence conclusively establishes submitted ground for termination under section 161.001(1), any error in failing to submit specific instruction on juror agreement regarding parental conduct is harmless). (1)

2. Espitia also argues the evidence is factually insufficient to support the jury's finding that termination is in D.E.'s best interest. We again disagree. The following evidence is sufficient to produce in the jurors' minds "a firm belief or conviction" that termination is in D.E.'s best interest: D.E.'s mother voluntarily relinquished her parental rights; D.E.'s greatest need is for a stable, safe environment; at the time of trial, Espitia faced at least five and one-half more years in prison on an aggravated robbery charge and certainly therefore cannot now provide a stable, safe home for D.E. and may very well never be able to provide a stable, safe home for D.E. in light of Espitia's persistent and prolonged criminal history, incarceration, unemployment, and drug use. Moreover, what D.E. wants, above all is to stay with his cousin, the person with whom he has had the closest relationship; the Department plans to place D.E. and his cousin in the same home; and keeping D.E. and his cousin together cannot be accomplished if D.E. were placed in Shirley Perez's home (the home Espitia suggests) because she is unwilling to take both boys.

3. Espitia also argues he was denied effective assistance of counsel. Although the Supreme Court of Texas has expressly reserved the issue of whether a litigant in Espitia's position is entitled to urge ineffective assistance of his appointed counsel, In re J.F.C., 96 S.W.3d at 281, a majority of the Texas Courts of Appeals addressing the issue has held he may not. (2) This court has not addressed the issue; and we do not do so now since it is unnecessary to our decision.

Even if we were to assume Espitia has the right to urge ineffective assistance, he has not demonstrated he received ineffective assistance in this case under the well-established standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), and adopted by the Texas Court of Criminal Appeals in Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986): (1) conduct falling below an objective standard of reasonableness under prevailing professional norms (2) that so prejudiced the defendant that, but for the ineffective assistance, the result of the proceedings would have been different. See id.

a. Failure to Investigate and Prepare for Trial - Espitia argues his appointed counsel was ineffective because they failed to investigate the case and subpoena witnesses. However, the record is silent on counsels' investigation and whether any witnesses who were available for trial could have given testimony favorable to Espitia. A silent record will not support a claim of ineffective assistance. See Mitchell v. State, 68 S.W.3d 640, 655 (Tex. Crim. App. 2002).

b. Charge Error - Espitia also argues he received "ineffective assistance of counsel by failing to request an instruction which required that at least 10 jurors had to agree on the same ground for termination ... and that those same 10 jurors had to agree that termination ... was in the child's best interest." This ground is without merit, as discussed in paragraph 1 above.

c. Espitia also argues he received ineffective assistance of counsel because his attorney "failed to assure his presence" at the motion for new trial hearing and failed "to present relevant case law." However, as the Department points out, the complaints in Espitia's motion for new trial were determinable solely by resort to the record; therefore, Espitia's presence was not necessary and would not have been beneficial. And the evidence conclusively establishes a ground for termination - section 161.001(1)(Q). Therefore, the failure to provide the trial court with case law regarding other grounds for termination could not have prejudiced Espitia.

The judgment is affirmed.

Sarah B. Duncan, Justice

1. Espitia attempts to distinguish his case from J.F.C. by the fact that it was decided on the ground that the Department conclusively established that "each parent engaged in a course of conduct described by subsection 161.001(1), Texas Family Code, " while Espitia's "case ... [does] not present subsection 161.001(1) as a ground for termination." We disagree. On page 4 of the court's charge the jury was instructed that the parent-child relationship could be terminated if it was persuaded by clear and convincing evidence that Espitia "[k]nowingly engaged in criminal conduct that has resulted in the father's (i) conviction of an offense, and (ii) confinement or imprisonment and inability to care for the child for not less than two years from the date of filing the petition" - the ground for termination contained in section 161.001(1)(Q). And, as noted above, this ground for termination was conclusively established.

2. See In re M.S., 73 S.W.3d 537, 542-43 (Tex. App.-Beaumont 2002, pet. granted); Arteaga v. Texas Dep't of Protective & Regulatory. Servs., 924 S.W.2d 756, 762 (Tex. App.-Austin 1996, writ denied); In re J.F., 888 S.W.2d 140, 143 (Tex. App.-Tyler 1994, no writ); Posner v. Dallas County Child Welfare Unit, 784 S.W.2d 585, 588 (Tex. App.-Eastland 1990, writ denied); Howell v. Dallas County Child Welfare Unit, 710 S.W.2d 729, 734-35 (Tex. App.-Dallas 1986, writ ref'd n.r.e.), cert. denied, 481 U.S. 1018 (1987); but see In re K.L., 91 S.W.3d 1, 5-13 (Tex. App.-Fort Worth 2002, no pet.); In re B.L.D., 56 S.W.3d 203, 209-212 (Tex. App.-Waco 2001, pet. granted); In re J.M.S., 43 S.W.3d 60, 62-63 (Tex. App.-Houston [1st Dist.] 2001, no pet.).