Joe Lewis Valencia v. Department of Family and Protective Services--Appeal from 313th District Court of Harris County
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Opinion issued July 29, 2010
In The
Court of Appeals
For The
First District of Texas
NO. 01-08-00345-CV
____________
IN THE INTEREST OF V.V., A MINOR CHILD
On Appeal from the 313th District Court
Harris County, Texas
Trial Court Cause No. 2006-10410J
DISSENTING OPINION
Judges should decide the cases that come before them based upon the facts in
evidence and the governing law, not upon their moral preferences, desires, or the
dictates of their emotions. The ―obvious problem‖ with ―results-oriented judging‖
is that ―it produces bad results because it guts the rule of law.‖1 It subjects litigants
not to the Rule of Law, which can be discerned, understood, and applied, but to
judicial whim, which is known only to the judges involved. Accordingly, judges
should impartially and dispassionately decide the cases that come before them, and,
―[i]nstead of worrying about the result in particular cases, judges should follow the
rule of law in thousands of cases because doing so leads to better results than not
doing so.‖2 In contrast, ―result–oriented judging . . . produces bad consequences on
a system-wide basis.‖3
This Court and the other intermediate appellate courts like it exist to ensure
due process of law, the most fundamental and ancient right established in
Anglo-American jurisprudence and first articulated in Magna Carta.4 In doing so,
we are to correct the harmful errors of trial courts, including erroneous fact findings.
These are solemn duties. When appellate judges fail in fulfilling them, the whole
justice system fails.
1
ORIGINALISM: A QUARTER-CENTURY OF DEBATE 26 (Steven G. Calabresi ed.
2007) [hereinafter ORIGINALISM].
2
ORIGINALISM at 26–27.
3
Id. at 27.
4
MAGNA CARTA, 1215, c. 39.
2
In this case, the assigned panel, exercising judicial restraint,5 impartially and
dispassionately decided the issues presented to this Court based upon the actual facts
in evidence and the governing law. The majority, taking upon itself the roles of
advocate and policy maker, has now, in suggesting relief neither requested nor
argued for by either party, conditionally affirmed the trial court‘s judgment.
Through its en banc opinion, the majority makes new law, changing the rules after
the panel unanimously made its decision under the governing law. The stunning
effect of the majority‘s opinion is that it will shut down all claims for the
constructive denial of the right to counsel in termination of parental rights cases,
regardless of how egregious the inaction of trial counsel.
In overruling the unanimous panel opinion in this case, the majority does not
dispassionately state the pertinent background facts. In fact, it, in large part,
considers as fact mere allegations, made for the first time on appeal in briefing and in
motions, which are not in the appellate record and are in no way supported by the
actual five and one-half page, double spaced, trial transcript, which is set out in its
entirety below. Moreover, the majority not only misinterprets the well-established
governing law, it, inconsistent with that law, creates out of whole cloth, a
5
In contrast to such restraint, the term ―judicial activism‖ has been defined as a judge
―deciding a case on the basis of his [or her] own (usually moral) preferences rather
than the governing law.‖ AMERICAN CONSERVATISM: AN ENCYCLOPEDIA 460
(Bruce Frohnen, Jeremy Beer, and Jeffrey O. Nelson eds. 2006).
3
conditional affirmance—an unnecessary appellate abatement procedure for parents
claiming ineffective assistance of trial counsel in termination of parental rights cases
to prove up in a trial court what they have already established as a matter of law in an
intermediate appellate court.
In reaching for what it considers to be a better result than that compelled by
the governing law, the majority sacrifices the fundamental duties that attorneys owe
to their clients along with the strict standard of proof necessary to terminate parental
rights adopted by the Texas Legislature. The majority has indeed produced a bad
consequence on a system-wide basis. Thus, this case reveals a fundamental
breakdown in the judicial process in Texas. The majority fails to realize what most
Americans, based upon a common experience, have come to understand all too
well—government agencies, like all organizations, are capable of ―encourag[ing]
methods of decision making that make failure even more likely and then
inevitable.‖6
If allowed to stand, the majority‘s en banc opinion will not only
encourage trial courts to (1) constructively deny parents their statutory right to
counsel in parental-rights termination cases and (2) terminate parental rights on less
than clear and convincing evidence in summary proceedings, it will make the
practices ―inevitable.‖
6
DIETRICH DÖRNER, THE LOGIC OF FAILURE 10 (Ritz & Robert Kimber trans.,
Metropolitan Books 1996).
4
Accordingly, I dissent.
The Issues Presented
Appellant, Joe Lewis Valencia, challenges the trial court‘s termination of his
parental rights to his minor child. In three issues, Valencia contends that his
court-appointed attorney‘s performance at trial ―was so patently deficient that [he]
was denied any meaningful assistance of counsel altogether‖ and the evidence
presented against him at trial, as revealed in the five and one-half page trial
transcript, is legally and factually insufficient to support the trial court‘s findings
that he had ―endangered‖7 the child and that termination of his parental rights is in
the child‘s best interest.
In regard to his first issue, the panel in our original opinion,8 viewing the
entire record before us, stated that ―we are compelled to hold that Valencia received
no meaningful assistance of counsel and was denied an advocate for his cause.‖
We noted that his ―trial counsel idly sat by, doing nothing to ensure Valencia a fair
hearing, and he essentially allowed DFPS to terminate Valencia‘s parental rights
without having to prove its case.‖
In regard to his second issue, the panel noted that the only evidence offered by
7
See TEX. FAM. CODE ANN. § 161.001(1)(E) (Vernon Supp. 2009).
8
See Valencia v. Tex. Dep’t of Family and Protective Servs., No. 01-08-00345-CV,
2010 WL 1240988, at *9 (Tex. App.—Houston [1st Dist.] Mar. 25, 2010,
no pet. h.).
5
DFPS on the issue of ―endangerment‖ consisted of copies, mostly uncertified, of
criminal records purportedly showing that Valencia, (1) prior to the child‘s birth,
had been convicted of several misdemeanor and state jail felony offenses; (2) at the
time of the child‘s birth, was in jail pending trial for the offense of aggravated
robbery, a case which was later dismissed; and (3) after the child‘s birth, stood
accused by information of the misdemeanor offense of assaulting Sandra Flores, the
child‘s biological mother, who had already agreed to relinquish her parental rights.
We also noted that the record conclusively establishes that Valencia had never had
possession of the child.
Accordingly, we held that the evidence is legally
insufficient to support the trial court‘s finding that Valencia, based on his prior
history of incarceration for criminal offenses, actually endangered the child.
The unanimous panel reversed that portion of the decree terminating the
parent-child relationship between Valencia and the child and rendered judgment that
Valencia‘s parental rights were not terminated.9
9
DFPS also petitioned for conservatorship of the child, and the trial court, in its
decree terminating Valencia‘s parental rights, found that appointment of a parent as
managing conservator of the child would not be in the best interest of the child
because the appointment ―would significantly impair the child‘s physical health or
emotional development.‖ See TEX. FAM. CODE. ANN. § 153.131 (Vernon 2008).
Although Valencia, in the prayer of his brief, asks this Court to ―reverse the
appointment of DFPS as [the child‘s] sole managing conservator,‖ he did not assign
a separate issue for our review or provide briefing regarding conservatorship. See
TEX. R. APP. P. 38.1(f), (i). Because Valencia does not separately challenge the
trial court‘s order regarding conservatorship, the panel did not disturb that portion
of the trial court‘s decree. See In re J.A.J., 243 S.W.3d 611, 617 (Tex. 2007)
6
The Evidence
Facts are stubborn things, and the few facts presented in the paltry record of
this case are indeed unyielding.
The clerk‘s record contains the November 10, 2006 affidavit of DFPS agent
C. Heiskill, who testified that DFPS ―received a referral alleging the physical abuse‖
of the child, who was born to Sandra Lynn Flores on November 7, 2006. Both the
mother and the child tested positive for opiates, and Flores told Heiskill that
Valencia is the father of the child and he was ―in jail for robbery.‖ After removing
the child from Flores‘s custody, Heiskill located Valencia in the Harris County Jail,
but she could not interview him because he was in quarantine.
The State
subsequently dismissed the robbery case.
The five and one-half page, double spaced, reporter‘s record reads more like a
proceeding in Star Chamber than a real adversary trial in a Texas courtroom. The
transcript of the April 9, 2008 nonjury trial, which under a conservative estimate
could not have lasted more than a few minutes, reads, in its entirety, as follows:
[Trial Court]:
2006-10410J; In the Interest of [the child]. The
Court will take judicial notice of the contents of
[its] file. Proceed. Okay.
(holding that, because different evidentiary standards apply, parent must separately
challenge termination of parental rights and appointment of conservator when
DFPS seeks conservatorship under Texas Family Code section 153.131).
7
[Trial Counsel]:
Judge, if I may, on behalf of the father, the father
was released, we sent him notice to be here
today to come. To bring to your attention, he is
out of Harris County and in county jail. We‘re
asking for a couple of weeks.
[Trial Court]:
Denied.
[DFPS Counsel]:
Call my first witness.
[DFPS Counsel]:
State your name for the Court.
[Washington]:
Felicia Washington.
[DFPS Counsel]:
How are you employed?
[Washington]:
Caseworker for DFPS.
[DFPS Counsel]:
As such, are you assigned to the Valencia case?
[Washington]:
Yes, I am.
[DFPS Counsel]:
Tell the Court what the goal is in the case?
[Washington]:
The goal is unrelated adoption.
[DFPS Counsel]:
Adoption. Okay. Could you please tell the Court
how the child came into care?
[Washington]:
Back in 2007 --yeah.
[Trial Court]:
I will take judicial notice of the contents of its
file, that includes the affidavit that describes the
reason the child was taken into care.
You may proceed.
[DFPS Counsel]:
Where is she currently placed?
[Washington]:
Placed in a kinship placement.
[DFPS Counsel]:
Is the placement meeting all of the physical and
8
emotional needs?
[Washington]:
Yes.
[DFPS Counsel]:
Let‘s talk about Joe Valencia. Originally, the
named father; is that correct?
[Washington]:
Yes.
[DFPS Counsel]:
Mr. Valencia was in jail when this case first
started?
[Washington]:
Yes.
[DFPS Counsel]:
And personally served in November, 2006?
[Washington]:
Yes, he was.
[DFPS Counsel]:
When was the first time you had contact with
him?
[Washington]:
The last hearing that we had.
[DFPS Counsel]:
Which was in January of --
[Washington]:
2008.
[DFPS Counsel]:
At the last hearing, Mr. Valencia showed up and
offered to take a paternity test?
[Washington]:
Yes, he did.
[DFPS Counsel]:
Do you know the result of the paternity test?
[Washington]:
Yes. The result was, he is the father of the child.
[DFPS Counsel]:
He knows he is the father, and since then has he
made any contact with the Agency?
[Washington]:
No, he has not.
[DFPS Counsel]:
And has he made any attempts to check on the
9
welfare of the child?
[Washington]:
No, he has hot.
[DFPS Counsel]:
And to your knowledge, Mr. Valencia was
living with the mother of the child, correct?
And this is the mother that tested positive for
cocaine at the time of the birth of the child?
[Washington]:
Yes.
[DFPS Counsel]:
And to your knowledge, does Mr. Valencia have
a criminal record?
[Washington]:
Yes, he has.
[DFPS Counsel]:
And, your Honor, I‘m asking for State‘s Exhibit
No.1, Mr. Valencia‘s criminal record to be
admitted.
(Petitioner‘s Exhibit No.1 offered)
[Child‘s Ad Litem]:
No objections.
[Trial Court]:
It‘s admitted.
(Petitioner‘s Exhibit No.1 admitted)
[DFPS Counsel]:
749311; burglary of a motor vehicle; DWI;
evading arrest; theft; assault; theft; DWI; more
unauthorized use of a motor vehicle; and
prosecuted as a third defendant for theft and
aggravated robbery, which was dismissed due
you to a lack school [sic] of witnesses; and also
as recent --in jail right now for assault of Sandra
Flores the mother, and we would like to mark
that.
(Petitioner‘s Exhibit No.1 offered)
[Trial Court]:
Any other exhibit or is that it?
10
[DFPS Counsel]:
That is it right here. These are photos of his
assault.
[Trial Counsel]:
Judge, object, goes to the criminal side.
[Trial Court]:
Overruled.
[Child‘s Ad Litem]:
No objections.
[Trial Court]:
They are admitted. [10]
(Petitioner‘s Exhibit No.1 admitted)[11]
10
Although the trial court overruled the objection ―goes to the criminal side,‖ no
photographs were marked as exhibits or actually authenticated through the
testimony of a witness. Only Petitioner‘s Exhibit No. 1 was actually admitted into
evidence. When this Court ordered the court reporter to supplement the record
with ―the reporter‘s record containing all of the recorded testimony and evidence
admitted at the trial,‖ the court reporter responded by filing the trial transcript and
only one exhibit, Petitioner‘s Exhibit No. 1, and not any photographs.
11
Petitioners Exhibit No. 1 is a packet of copies, only two of which are certified, of
criminal complaints and judgments and sentences purportedly entered against
Valencia. As conceded by DFPS, the certified copies of documents contained in
Petitioner‘s Exhibit No. 1 reveal that the case against Valencia for the offense of
aggravated robbery was dismissed on March 26, 2007. Moreover, although a
certified copy of a criminal information, apparently filed on March 29, 2008,
accused Valencia of the misdemeanor offense of ―Assault-Family Member,‖
nothing indicated that, as of the date that the trial court entered its decree, he had
been convicted of the offense.
Inexplicably, counsel for DFPS merely stated, ―[t]hese are photos of his assault‖
and presented no testimony to prove that Valencia had committed the misdemeanor
offense of assault. A criminal information cannot be considered evidence that an
accused has committed a criminal offense. Ex parte Dumas, 110 Tex. Crim. 1, 2, 7
S.W.2d 90, 90 (1928).
The uncertified copies of criminal complaints and judgments and sentences in
Petitioner‘s Exhibit 1 purport to establish that Valencia was convicted of the
following offenses: (1) on April 4, 1997, the offense of unauthorized use of a motor
vehicle, punished as a misdemeanor with a sentence of 180 days confinement in the
11
[Washington]:
That‘s the mother of the child.
[DFPS Counsel]:
Has Mr. Joe Valencia been able to show he has
any relatives that could care for the child?
[Washington]:
No, he does not.
[DFPS Counsel]:
Based on the Court of contact that he has been in
and out of jail every year for the --at least 10
years, and if he went to jail and the child was
placed with him, how would that affect the
emotional stability of the child?
[Trial Counsel]:
Objection, speculation.
[DFPS Counsel]:
So, he has no --
[Washington]:
Go ahead. That‘s okay.
[DFPS Counsel]:
Has the child been able to bond with Joe?
[Washington]:
With Joe?
Harris County Jail; (2) on November 11, 1997, the offense of theft from a person,
punished as a misdemeanor with a sentence of one year confinement in the Harris
County Jail; (3) on April 22, 1998, the offense of driving while intoxicated, a
misdemeanor, with a sentence of 60 days in the Harris County Jail; (4) on February
14, 2000, the offense of evading arrest, a misdemeanor, with a sentence of 60 days
in the Harris County Jail; (5) on May 30, 2000, the offense of assault, a
misdemeanor, with a sentence of 90 days in the Harris County Jail; (6) on June 25,
2002, the offense of driving while intoxicated, a misdemeanor, with a sentence of
90 days in the Harris County Jail; (7) on September 19, 2003, the offense of
unauthorized use of a motor vehicle, a state jail felony, with a sentence of 180 days
in a state jail; and (8) on September 23, 2004, the offense of theft, a state jail felony,
with a sentence of 14 months in a state jail.
The punishment for a state jail felony is by confinement in a state jail for any term of
not more than two years or less than 180 days and a possible fine not to exceed
$10,000. TEX. PENAL CODE ANN. 12.35(a), (b) (Vernon Supp. 2009).
12
[DFPS Counsel]:
With Joe Valencia?
[Washington]:
No.
[DFPS Counsel]:
How long has the child been placed with its
current caregivers?
[Washington]:
14 months.
[DFPS Counsel]:
14 months. And has the child and family
bonded?
[Washington]:
Yes, very much.
[DFPS Counsel]:
Would it be in the best interest of the child for
the child to stay with the family?
[Washington]:
Yes.
[DFPS Counsel]:
And why?
[Washington]:
They‘ve had the child since she was four months
old, and the child‘s in a very stable environment,
and the child is bonded to the family.
[DFPS Counsel]:
And since Joe has an extensive criminal history,
including domestic violence, it would not be in
the best interest to return the child to him?
[Washington]:
No, to return the child.
[DFPS Counsel]:
Based on over 10 years of repeated criminal
history including assault of the mother, are you
asking that Joe Valencia‘s rights be terminated
and he has engaged in conduct that endangers
the physical and emotional well-being of the
child?
[Washington]:
Yes.
[DFPS Counsel]:
No further questions.
13
[Trial Court]:
Cross.
[Trial Counsel]:
No questions, Judge.
[Child‘s Ad Litem]:
No questions, your Honor.
[Trial Court]:
Petition is granted. TDFPS is appointed PMC.
Entry of Judgment, today. Review hearing next
10-20-08. Good luck.
Given this brief record, one can easily compare the actual facts established at
trial with what the majority, based on the representations of DFPS, asserts as fact in
its opinion. Such a comparison reveals that several of the assertions are either not
supported by the record or are objectively false:
Majority Assertions:
What the Record reveals:
―The record . . . reveals . . . As revealed above, DFPS did not
[Valencia‘s] wholesale lack of even explore this subject matter in
parenting beyond the moment of the trial court.
conception . . .‖
It relied exclusively upon Valencia‘s
“A lack of all contact with a child ―extensive criminal history‖ as its
without any proffered excuse and no proof that he had endangered the
effort to insure her safety . . .‖
child.
―. . . no effort to care for his daughter As revealed above, DFPS merely
. . . .‖
asked Washington if Valencia, after
he had offered to take a paternity
―. . . the father has not inquired test, which revealed that he is the
about or supported the child or father‘s child, had ―made any
made any effort to see to her needs.‖ contact with the Agency‖ or ―made
made any attempts to check on the
―The father has never seen the child, welfare of the child?‖ She merely
paid support, or made any answered that he had not done either
arrangements to provide her with of those two things.
food, clothing, shelter or care.‖
―The father offered no excuse for his Because Valencia‘s trial counsel did
14
Majority Assertions:
What the Record reveals:
behavior at trial.‖
not know how to get him to court,
Valencia could not appear at trial to
defend himself.
―[He] assaulted the child‘s mother.‖
At the time the trial court entered its
decree, Valencia had been accused
―The record . . . reveals the father’s by information of the misdemeanor
assault on the child’s mother . . . .‖ assault of the child‘s mother, who
had already agreed to relinquish her
parental rights.
DFPS did not produce any
testimony to prove that Valencia had
committed the offense of assault.
―The record . . . reveals . . . a child
left in the care of the state at birth
because the father was in jail and
the mother had ingested opiates
during the pregnancy.‖
In her affidavit, in regard to ―Facts
Necessitating Removal of the
Child,‖ Heiskill testified that
―[DFPS] received a referral alleging
the physical abuse of [the child] . . .
[who had] tested positive for Opiates
. . . .‖
Nothing in Heiskill‘s affidavit
testimony in any way implicates
Valencia or his conduct regarding
the child. Heiskill merely noted
that ―[Valencia] is in jail for
robbery.‖
―. . . four of this father‘s eight Valencia‘s criminal history consists
convictions are for felonies.‖
of misdemeanors and state jail
felony convictions for which he,
prior to the child‘s birth, had served
time in either a county or state jail
facility.
―The father has not attempted to Valencia has never relinquished his
seek . . . reunification with [the parental rights, and he has
child].‖
maintained this appeal for over two
years.
15
As once emphasized by John Adams, ―whatever may be our wishes, our inclinations,
or the dictums of our passions, they cannot alter the state of facts and evidence.‖12
Procedural Background
In its November 10, 2006 Original Petition for Protection of a Child, for
Conservatorship, and for Termination in a Suit Affecting the Parent-Child
Relationship, DFPS alleged that ―Rene Flores‖ was the child‘s ―father,‖ Valencia
was the child‘s ―alleged father,‖ and an ―unknown‖ man was the child‘s alleged
father. DFPS sought a determination of Valencia‘s parentage, and, if ―reunification
with [Valencia could] not be achieved,‖ the termination of the parent-child
relationship, if any existed, between Valencia and the child. On November 16,
2006, Valencia was served with citation in the Harris County Jail, but he did not
appear at the adversary hearing later that same day because he was in jail on a charge
that was later dismissed.
The trial court, on May 8, 2007, appointed an attorney ad litem for the
―unknown father‖ of the child. On September 6, 2007, Sandra Flores signed an
affidavit of voluntary relinquishment of her parental rights with respect to the child.
That same day, Valencia‘s court-appointed attorney (hereinafter ―trial counsel‖),
with the help of counsel for DFPS, filed a written ―Unopposed Motion For
12
DAVID MCCULLOUGH, JOHN ADAMS 68 (Simon & Schuster 2001).
16
Continuance‖ to bench warrant Valencia to the trial court.13 On January 3, 2008,
trial counsel filed an answer on behalf of Valencia, and Valencia, who appeared in
court for the first time, ―offered‖ to take a paternity test, which later established that
he is in fact the father of the child.
13
The motion, which is typed, reads in pertinent part as follows:
1.
This Motion is brought by the Harris County Attorney‘s Office
on behalf of the Department of Family and Protective Services,
who asks the Court, pursuant to Rule 251, Texas Rules of Civil
Procedure, to grant a continuance for the trial; of this cause. As
grounds for the requested continuance Movant alleges:
1.1.
Additional time is needed to bench warrant the alleged
father, Joe Lewis Valencia.
....
The motion contains a signature space, which clearly reads:
Respectfully submitted,
MIKE STAFFORD
HARRIS COUNTY ATTORNEY
SPN# [. . .]
___________________________
Susan Fillion
Attorney for Petitioner, Department of Family
and Protective Services
2525 Murworth Drive, Suite 300
Houston, TX 77054-1603
....
Although not signed by her, the signature space also contains the State Bar number
and telephone number of Fillion. Stafford and Fillion‘s information is lined
through, and, next to this information appears, in handwriting, the signature, name,
and information of Valencia‘s trial counsel.
17
Three months later, the trial court granted DFPS‘s petition and entered its
Decree For Termination solely on the ground that Valencia had ―engaged in conduct
or knowingly placed the child with persons who engaged in conduct which
endangers pursuant to § 161.001(1)(E) of the Texas Family Code.‖14
On April 24, 2008, Valencia‘s trial counsel filed a Motion for New Trial and
Statement of Appellate Points, a Request for Findings of Fact and Conclusions of
Law, and a Notice of Appeal. The record does not contain findings of fact and
conclusions of law, nor does it show that trial counsel ever filed a notice of past due
findings of fact and conclusions of law.15 In his new trial motion, trial counsel
contended that his ―oral motion for continuance to allow [Valencia] to be brought
over from the Harris County Jail should have been granted‖ as Valencia was ―within
walking distance of the courtroom‖; the trial ―court could have ordered all parties to
mediation to narrow the issues for trial‖; a new trial would ―not unduly burden‖ the
trial court; a new trial was in the best interest of the child; and justice would not
―properly be served‖ without a new trial.
In his Statement of Appellate Points, Valencia‘s trial counsel contended that
14
See TEX. FAM. CODE. ANN. § 161.001(1)(E) (Vernon Supp. 2009) (―The court may
order termination of the parent-child relationship if the court finds by clear and
convincing evidence . . . that the parent has . . . engaged in conduct or knowingly
placed the child with persons who engaged in conduct which endangers the physical
or emotional well-being of the child[.]‖).
15
See TEX. R. CIV. P. 297.
18
the trial court had erred in denying Valencia access to the court because, as ―an
inmate at the Harris County Jail,‖ he was ―available upon request of the court‖; the
evidence is legally and factually insufficient to support the trial court‘s finding that
termination of Valencia‘s parental rights was in the best interest of the child; the trial
of the case, in the absence of Valencia, ―deprived him of his due process pursuant to
the 5th and 14th Amendments to the U. S. Constitution, and Article 1, Sections 13
and 19 of the Texas Constitution‖ and ―his right to equal protection of the laws
pursuant to the 5th and 14th Amendments to the U. S. Constitution, and Article 1,
Sections 3, 3a, 13, and 19 of the Texas Constitution‖; and his appellate points were
not frivolous because termination of Valencia‘s parental rights affected his
―constitutionally protected fundamental right to parent.‖
The trial court, after a hearing held on May 6, 2008, denied Valencia‘s new
trial motion, appointed Valencia‘s trial counsel to represent him on appeal, and
found Valencia‘s appeal ―frivolous.‖
Valencia‘s trial counsel subsequently filed in this Court his appellant‘s brief,
in which he argued, in a single issue, that the trial court erred in ―determining
[Valencia‘s] appeal to be frivolous‖ because Valencia‘s ―fundamental right to parent
is constitutionally protected.‖ Because the record was incomplete, this Court
ordered the court reporter to prepare a record of the May 6, 2008 hearing. After the
court reporter responded that the record of the May 6, 2008 hearing could not be
19
located, this Court ordered the court reporter to supplement the record with all
recorded testimony and evidence admitted at the April 9, 2008 nonjury trial. Upon
receipt of the supplemented record, this Court afforded Valencia‘s trial counsel the
opportunity to review it and file an amended brief. Inexplicably, he filed a ―Waiver
of Opportunity to File a Supplemental Brief.‖
After reviewing the entire clerk‘s record and the five and one-half page trial
transcript along with Petitioner‘s Exhibit No. 1, this Court concluded that Valencia‘s
appeal is not frivolous because Valencia had an arguable basis for challenging the
legal and factual sufficiency of the evidence supporting the trial court‘s finding that
he had endangered the child and for challenging the effectiveness of his appointed
counsel.16 This Court struck the brief of Valencia‘s trial counsel, abated the appeal,
and remanded the case to the trial court for the appointment of new appellate
counsel. We ordered Valencia to file full briefing on the pertinent issues and, if
appropriate, an issue challenging the effectiveness of trial counsel‘s assistance.
Constructive Denial of Counsel
In his first issue, Valencia argues that because his trial counsel‘s performance
―did not simply consist of errors, omissions or poor trial strategy‖ and ―was so
patently deficient,‖ Valencia ―was denied any meaningful assistance of counsel
16
Joe Lewis Valencia v. Dep’t of Family and Protective Servs., No. 01-08-00345-CV,
(Tex. App.—Houston [1st Dist.] May 6, 2009, order) (panel consisting of Justices
Jennings, Alcala, and Higley).
20
altogether‖ and prejudice to his defense must be ―presumed.‖ See Strickland v.
Washington, 466 U.S. 668, 692, 104 S. Ct. 2052, 2067 (1984).
The Texas Supreme Court has held that ―an ineffective assistance of counsel
claim can be raised on appeal despite the failure to include it in a statement of
points.‖ In re J.O.A., 283 S.W.3d 336, 339 (Tex. 2009). Thus, Valencia may raise
this issue for the first time on appeal notwithstanding the fact that his trial counsel
failed to assert it in his statement of appellate points as required by statute. Id.; see
TEX. FAM. CODE ANN. § 263.405(i) (Vernon 2008) (―The appellate court may not
consider any issue that was not specifically presented to the trial court in a timely
filed statement of points on which the party intends to appeal or in a statement
combined with a motion for new trial.‖).
Standard of Review
The Texas Family Code requires the appointment of counsel to represent an
indigent parent who responds in opposition to a suit filed by a governmental entity in
which termination of the parent-child relationship is requested.17 TEX. FAM. CODE
17
This Court has further recognized that a parent has a constitutional right to counsel
in such cases. Bermea v. Tex. Dep’t of Family and Protective Servs., 265 S.W.3d
34, 39 (Tex. App.—Houston [1st Dist.] 2008), pet. denied, 264 S.W.3d 742 (Tex.
2008) (per curiam); In re J.M.S., 43 S.W.3d 60, 63 (Tex. App.—Houston [1st Dist.]
2001, no pet.). In so doing, we have emphasized
The United States Supreme Court has unanimously held that ―the
interest of parents in their relationship with their children is
sufficiently fundamental to come within the finite class of liberty
21
ANN. § 107.013(a)(1) (Vernon Supp. 2009). The Texas Supreme Court has held
that this statutory right to counsel ―embodies the right to effective counsel.‖ In re
M.S., 115 S.W.3d 534, 544 (Tex. 2003). In doing so, the supreme court emphasized
that ―‗[i]t would seem a useless gesture on the one hand to recognize the importance
of counsel in termination proceedings, as evidenced by the statutory right to
appointed counsel, and, on the other hand, not require that counsel perform
effectively.‘‖ Id. (quoting In re K.L., 91 S.W.3d 1, 13 (Tex. App.—Fort Worth
2002, no pet.)). Accordingly, the court concluded that the appropriate standard of
review to apply in evaluating claims of ineffective assistance of counsel in civil
parental-rights termination cases is that set forth by the United States Supreme Court
for criminal cases in Strickland v. Washington. Id.
In Strickland, the United States Supreme Court, pursuant to the Sixth
Amendment, like the Texas Supreme Court, pursuant to Family Code section
107.013(a)(1), expressly recognized:
interests protected by the Fourteenth Amendment.‖ . . . It also
unanimously held that ―[f]ew consequences of judicial action are so
grave as the severance of natural family ties.‖ . . . For these reasons,
the United States Supreme Court places termination of parental
rights cases in the same category as criminal cases and analogizes a
parent losing parental rights to a ―defendant resisting criminal
conviction‖ because both seek ―to be spared from the State‘s
devastatingly adverse action.‖
In re J.M.S., 43 S.W.3d at 63 (quoting M.L.B. v. S.L.J., 519 U.S. 102, 103, 117 S. Ct.
555, 565, 568 (1996)); see also Bermea, 265 S.W.3d at 39.
22
That a person who happens to be a lawyer is present at trial alongside
the accused, however, is not enough to satisfy the constitutional
command. The Sixth Amendment recognizes the right to the
assistance of counsel because it envisions counsel‘s playing a role that
is critical to the ability of the adversarial system to produce just results.
An accused is entitled to be assisted by an attorney, whether retained or
appointed, who plays the role necessary to ensure that the trial is fair.
466 U.S. at 685, 104 S. Ct. at 2063 (emphasis added). The purpose of the guarantee
of counsel in our adversary system of justice is ―to ensure that a defendant has the
assistance necessary to justify reliance on the outcome of the proceeding.‖ Id. at
691–92, 104 S. Ct. at 2067 (emphasis added). Thus, to constitute ineffective
assistance, any deficiencies in counsel‘s performance must be prejudicial to the
defense.
Id.
Such prejudice, depending upon the context, is either legally
presumed or, if not, determined by inquiry. Id. at 692, 104 S. Ct. at 2067.
The Supreme Court, in Strickland, expressly explained that in certain
contexts, such ―prejudice is presumed‖ and specifically noted:
Actual or constructive denial of the assistance of counsel altogether
is legally presumed to result in prejudice.
Id. (emphasis added). In these circumstances, ―an inquiry into prejudice‖ is simply
unnecessary. Id. If the right to counsel in an adversary proceeding has been
denied, actually or constructively, how can a court ever justifiably rely on the
outcome of the proceeding? As succinctly stated by John Adams, ―no [person] in a
23
free country should be denied the right to counsel and a fair trial.‖18
In the infamous sleeping-lawyer case, the United States Court of Appeals for
the Fifth Circuit, sitting en banc, emphasized that there is nothing ―new‖ about the
rule of presumed prejudice and the rule is ―well-established.‖ Burdine v. Johnson,
262 F.3d 336, 348 (5th Cir. 2001). As explained by Judge Patrick Higginbotham:
We presume prejudice because experience tells us that an occurrence
presents both a high probability of prejudice and a difficulty of
―proving it‖ in any finite sense. The law speaks of presumption not to
supply a missing ingredient, but rather to recognize its inevitable
presence. Right to counsel at critical stages is only an example of this
principle. We simply will not put a person on trial for his life in the
absence of counsel.
Id. at 355 (Higginbotham, J. concurring) (emphasis added).
In United States v. Cronic, the Supreme Court expounded upon the principle
that prejudice is presumed ―if the accused is denied counsel at a critical stage of his
trial [or] . . . if counsel entirely fails to subject the prosecution‘s case to meaningful
adversarial testing.‖ 466 U.S. 648, 659, 104 S. Ct. 2039, 2047 (1984) (emphasis
added). The Supreme Court explained:
The [Sixth] Amendment requires not merely the provision of counsel to
the accused, but ―Assistance,‖ which is to be ―for his defence.‖ . . . If
no actual ―Assistance‖ ―for‖ the accused‘s ―defence‖ is provided, then
the constitutional guarantee has been violated. To hold otherwise
―could convert the appointment of counsel into a sham and nothing
more than a formal compliance with the Constitution‘s requirement
that an accused be given the assistance of counsel. The Constitution‘s
18
MCCULLOUGH at 66.
24
guarantee of assistance of counsel cannot be satisfied by mere formal
appointment.‖
Id. at 654–55, 104 S. Ct. at 2044 (internal citations omitted).
Accordingly,
prejudice is presumed in circumstances that make it ―unlikely that the defendant
could have received the effective assistance of counsel.‖ See id. at 666, 104 S. Ct.
at 2051. Why? Because the right to counsel has been denied. See id. at 654, 104
S. Ct. at 2044.
In cases in which counsel for an accused has not entirely failed to subject the
prosecution‘s case to meaningful adversarial testing, but has failed to render
adequate legal assistance, prejudice is not legally presumed, and a prejudice inquiry
must be conducted. In Strickland, the Supreme Court announced a two-prong test
for evaluating such claims. 466 U.S. at 687, 104 S. Ct. at 2064. In regard to a
criminal defendant‘s claim of ―actual ineffective assistance of counsel‖ based on the
errors and omissions of his attorney, the defendant must show that (1) his attorney‘s
performance was deficient and fell below an objective standard of reasonableness
and (2) the deficient performance prejudiced his defense. Id. at 684–87, 104 S. Ct.
at 2063–64. Of course, if counsel entirely fails to subject a case to ―meaningful
adversarial testing,‖ there is no performance to evaluate.
In regard to the second prong of the test, ―[t]he defendant must show that there
is a reasonable probability that, but for counsel‘s unprofessional errors, the result of
the proceeding would have been different.‖ Id. at 694, 104 S. Ct. at 2068 (emphasis
25
added); see also Bell v. Cone, 535 U.S. 685, 686, 122 S. Ct. 1843, 1846 (2002). The
Supreme Court expressly stated that this does not mean that a defendant must ―show
that counsel‘s deficient conduct more likely than not altered the outcome in the
case.‖
Strickland 466 U.S. at 693, 104 S. Ct. at 2068.
Rather, the term
―reasonable probability,‖ as defined by the Supreme Court, means ―a probability
sufficient to undermine confidence in the outcome.‖ Id. at 694, 104 S. Ct. at 2068
(emphasis added).
Thus,
The result of a proceeding can be rendered unreliable, and hence the
proceeding itself unfair, even if the errors of counsel cannot be shown
by a preponderance of the evidence to have determined the outcome.
Id. (emphasis added). The Texas Supreme Court has recently echoed this standard
by stating that the focus for the prejudice inquiry is whether counsel‘s mistakes were
―so serious as to deny the defendant a fair and reliable trial.‖ In re B.G., No.
07-0960, 2010 WL 2636050, at *3 (Tex. July 2, 2010) (quoting In re J.O.A., 283
S.W.3d at 344 (citing Strickland, 466 U.S. at 687, 104 S. Ct. at 2064)). The test for
prejudice is not, as the majority and our concurring colleague assert, that a defendant
must show that, absent counsel‘s deficient performance, the outcome of his trial
would have been different.19 Contrary to the majority‘s claim, Strickland simply
19
The majority asserts, ―Following J.O.A. and the Texas Supreme Court‘s holding in
M.S., we uphold the requirement announced in the Strickland’s second prong, and
we place the burden on the father to show that the outcome of this trial would have
been different had counsel provided him with a good defense.‖ Justice Keyes, in
26
does not require Valencia to show that his trial ―counsel‘s inadequacy caused the
trial court to make the wrong decision.‖
One can never justify reliance on the outcome of a proceeding in which the
right to counsel has been actually or constructively denied. Thus, it makes no sense
to further inquire whether there is a reasonable probability, i.e., one sufficient to
undermine confidence, that the outcome of such a proceeding would have been
different.
Presumed Prejudice
In support of his argument that he received no meaningful assistance of
counsel in the trial court and prejudice to his defense must be legally presumed,
Valencia emphasizes the shocking brevity of the trial transcript of his parental-rights
termination trial and that trial counsel:
1.
failed to bench warrant Valencia to trial, and failed to put his
motion for continuance, based on his need to secure Valencia‘s
presence at trial, in writing or to verify it;
2.
failed to object when the trial court took judicial notice of the
contents of DFPS‘s file;
3.
failed to object to the introduction into evidence of Petitioner‘s
Exhibit No. 1, which contained numerous unauthenticated
copies of purported criminal records;
her concurring and dissenting opinion, asserts that the standard is that Valencia‘s
―parental rights would probably not have been terminated but for his counsel‘s
ineffective performance at trial.‖
27
4.
made the invalid objection ―goes to the criminal side‖;
5.
failed to cross-examine Washington or to call any witnesses or
offer any evidence on Valencia‘s behalf; and
6.
failed to include in his statement of appellate points a challenge
to the legal and factual sufficiency of the evidence supporting the
trial court‘s finding that Valencia had endangered the child.
Based on these fundamental failures to act as an advocate on his behalf at each
critical stage of the proceeding below, Valencia asserts that his trial counsel‘s
representation ―was so outrageous that it went beyond incompetent and can be
rightly characterized as inert.‖
The record in this case compels the conclusion that Valencia received no
meaningful assistance of counsel during the critical pre-trial, trial, and post-trial
stages of the parental-rights termination proceeding. Although the trial court below
formally appointed a lawyer to represent Valencia, Valencia was constructively
denied his right to counsel.
The Fifth Circuit has noted that a ―constructive denial of counsel occurs when
the defendant is deprived of the guiding hand of counsel.‖ Childress v. Johnson,
103 F.3d 1221, 1228 (5th Cir. 1997) (internal citations omitted).
The court
explained that if ―the defendant complain[s] of counsel‘s errors, omissions, or
strategic blunders in the context of an active adversarial representation,‖ then the
Strickland two-prong deficient performance standard applies. Id. at 1229. The
―critical question in assessing a . . . right to counsel claim is whether the [defendant]
28
asserts that he received incompetent counsel, or none at all.‖ Id. at 1230 (emphasis
added). If such an argument is made, the rule is that ―a constructive denial of
counsel occurs when a criminal defendant must navigate a critical stage of the
proceedings against him without the aid of ‘an attorney dedicated to the protection
of his client’s rights under our adversarial system of justice,‘‖ or when counsel
―[abandons] the defense of his client at a critical stage of the . . . proceedings.‖ Id.
at 1229 (citing United States v. Swanson, 943 F.2d 1070, 1075 (9th Cir. 1991))
(emphasis added).
Like the defendant in Childress, Valencia emphasizes that he received no
assistance of counsel, that is, ―[i]n effect Appellant was not represented by counsel
at trial.‖ See 103 F.3d at 1230. The defendant in Childress also outlined a list of
the failures of his counsel noting that his counsel (1) never investigated the facts, (2)
never discussed the applicable law with him, and (3) never advised him of the rights
he would surrender by pleading guilty. Id. at 1223. That Valencia has provided a
list of failures does not negate his claim that he received no assistance of counsel.
See id.
Rather, the magnitude of the failures makes his point that he was
constructively denied counsel at each critical stage of the proceeding below.
Moreover, presuming prejudice in this case is in no way, as the majority
suggests, inconsistent with Strickland as adopted by the Texas Supreme Court in In
re M.S. 115 S.W.3d at 544. Again, the United States Supreme Court, in Strickland,
29
expressly acknowledged that when an accused has been actually or constructively
denied the assistance of counsel, prejudice to his defense is ―legally presumed.‖
466 U.S. at 692, 104 S. Ct. at 2067 (emphasis added). Not only is the legal
presumption of prejudice in this case consistent with In re M.S., it is consistent with
common sense. The actual or constructive denial of counsel in and of itself
undermines confidence in the outcome of a trial proceeding because the right to
counsel has been denied. Only if a defendant has received some meaningful
assistance of counsel is a prejudice inquiry necessary.
In the case before us, Valencia‘s trial counsel, in his new trial motion,
affirmatively represented to the trial court that on the date of trial, Valencia was
―within walking distance of the courtroom‖ and his ―oral motion for continuance to
allow [Valencia] to be brought over from the Harris County Jail should have been
granted.‖ Yet, trial counsel‘s only effort to secure Valencia‘s presence at a trial, in
which his constitutionally protected parental rights were at stake, was to orally state
to the trial court, ―To bring to your attention, he is out of Harris County and in
county jail. We‘re asking for a couple of weeks.‖
Although trial counsel, as revealed in his new trial motion, knew that Valencia
was in the Harris County Jail, he did not clearly articulate this fact to the trial court
on the trial date and did nothing to timely and properly secure Valencia‘s presence in
court by either obtaining a bench warrant prior to trial or filing a written and verified
30
motion for continuance. See TEX. R. CIV. P. 251. In fact, it is apparent from the
face of the record that trial counsel did not even know how to secure Valencia‘s
presence for trial. By failing to secure Valencia‘s presence at trial, trial counsel
completely deprived Valencia of his right to testify on his own behalf and to assist
trial counsel in presenting a defense, including the ability to assist trial counsel in
cross-examining Washington, the only witness presented against Valencia.
Moreover, by idly sitting by and doing nothing, Valencia‘s trial counsel
essentially relieved DFPS of meeting its burden of proof. This is revealed in the
sparse five and one-half page, double spaced, trial transcript. When the trial court,
sua sponte, took judicial notice of the contents of DFPS‘s file, trial counsel failed to
object or to do anything to require that DFPS present properly admissible evidence
to establish its allegation that Valencia had endangered the child. When DFPS
offered into evidence Petitioner‘s Exhibit No. 1, the packet of copies of purported
criminal records, trial counsel, again, failed to object. The only properly certified
copies concern the aggravated robbery case, which had been dismissed, and the
misdemeanor assault case, which was still pending at the time the trial court entered
its decree. See TEX. GOV‘T CODE ANN. § 406.013 (Vernon 2005); TEX. R. EVID.
901(7), 902(4).
When counsel for DFPS stated, without any authenticating
testimony, ―These are photos of [Valencia‘s] assault,‖ trial counsel apparently could
not articulate a proper objection, but rather made the nonsensical objection ―goes to
31
the criminal side.‖ And when given the opportunity to cross-examine Washington,
the only witness that DFPS presented at trial, trial counsel responded, ―No questions,
judge.‖
Trial counsel‘s post-trial representation was also essentially inert. Although
he went through the formality of filing his Request for Findings of Fact and
Conclusions of Law, he failed to timely file a notice of past due findings of fact after
the trial court failed to enter any findings. See TEX. R. CIV. P. 297. In his Motion
for New Trial and Statement of Appellate Points, trial counsel made a number of
inexplicable contentions. For example, he contended that the trial court erred in
denying his ―oral motion for continuance‖ and the trial court, apparently sua sponte,
―could have ordered all parties to mediation.‖
Although trial counsel contended that the evidence presented at trial is legally
and factually insufficient to support the trial court‘s finding that termination of
Valencia‘s parental rights is in the child‘s best interest, he failed, after a trial that
lasted only a few minutes, to challenge the legal and factual sufficiency of the
evidence to support the trial court‘s findings that Valencia had actually
―endangered‖ the child. This is truly remarkable given that the record conclusively
shows that Valencia was not determined to be the child‘s father until after he had
submitted to paternity testing and he had never had possession of the child. It is all
the more remarkable given that the only ―evidence‖ offered by DFPS on the issue of
32
endangerment consisted of copies, mostly uncertified, of criminal records
purportedly showing that Valencia, (1) prior to the child‘s birth, had been convicted
of several misdemeanor and state jail felony offenses; (2) at the time of the child‘s
birth, was in jail pending trial for the offense of aggravated robbery, a case which
was later dismissed; and (3) after the child‘s birth, stood accused of the
misdemeanor offense of assaulting Flores, who had already agreed to relinquish her
parental rights.
DFPS,
citing
Strickland‘s
two-prong
analysis
for
analyzing
deficient-performance claims, argues that because there is no evidence in the record
to show trial counsel‘s strategy or other reasoning behind his acts and omissions,
there is no basis upon which to conclude that his representation was ineffective.
However, as noted above, the United States Supreme Court, in Strickland, expressly
explained that the ―[a]ctual or constructive denial of the assistance of counsel
altogether is legally presumed to result in prejudice.‖ 466 U.S. at 692, 104 S. Ct. at
2067 (emphasis added). Here, the sparse record amply demonstrates that trial
counsel wholly failed to provide Valencia any meaningful assistance of counsel. In
fact, the record clearly reveals that trial counsel did not know how to secure his
client‘s presence in court, made no effort to provide a defense, did not ask a single
question of DFPS‘s only witness, did not know how to preserve error, effectively
acquiesced in the termination of Valencia‘s parental rights based upon scant and
33
mostly inadmissible evidence, and, post-trial, did not include in the statement of
appellate points a challenge to the legal and factual sufficiency of the scant evidence
on the issue of endangerment.
Again, ―the right to the assistance of counsel . . . envisions counsel‘s playing a
role that is critical to the ability of the adversarial system to produce just results.‖
Strickland, 466 U.S. at 685, 104 S. Ct. at 2063. The right to counsel, thus,
―encompasses the right to have an advocate for one‘s cause.‖ Childress, 103 F.3d
at 1228. No prejudice inquiry is necessary ―in cases of actual or constructive denial
of counsel,‖ ―when a defendant can establish that counsel was not merely
incompetent but inert[.]‖ Id. Constructive denial, such as when counsel ―entirely
fails to subject the prosecution‘s case to meaningful adversarial testing,‖ is the
difference between ―shoddy representation‖ and ―no representation at all.‖ Id. at
1228–29; see also Cronic, 466 U.S. at 659, 104 S. Ct. at 2047; Gochicoa v. Johnson,
238 F.3d 278, 284–85 (5th Cir. 2000); Jackson v. Johnson, 150 F.3d 520, 525 (5th
Cir. 1998).
Thus, the Fifth Circuit presumed prejudice in Childress where the
court-appointed trial lawyer ―never investigated the facts, never discussed the
applicable law with [the defendant], and never advised him of the rights he would
surrender by pleading guilty.‖ 103 F.3d at 1223. The court presumed prejudice
because it found that trial counsel took a ―potted plant approach‖ to representing
34
Childress; that is, ―counsel’s role was essentially passive.‖ Id. at 1226 (emphasis
added).
The Fifth Circuit, sitting en banc, also presumed prejudice in the
sleeping-lawyer case where defense counsel repeatedly slept in trial while evidence
was being introduced against the defendant. Burdine, 262 F.3d at 338. The State
of Texas argued that ―because Burdine [could not] demonstrate precisely when [his
lawyer] slept during his trial, he [could] not prove that [the lawyer] slept during
critical stages of [the] proceeding.‖ Id. at 347. The court rejected this argument,
noting that ―the State asks more of Burdine than the Supreme Court or this Court has
ever asked of a defendant attempting to show the absence of counsel during a critical
stage of trial.‖ Id. A defendant is ―not required . . . to explain how having
counsel would have altered the outcome of his specific case.‖ Id. (emphasis
added). Rather, courts are to look to whether ―the substantial rights of a defendant
may be affected‖ during that type of proceeding.
Id.
Thus, once the court
accepted the fact that Burdine‘s counsel slept ―during portions of [his] trial on the
merits, in particular during the guilt innocence phase when the State‘s solo
prosecuting attorney was questioning witnesses and presenting evidence, there
[was] no need to attempt to further scrutinize the record.‖ Id. at 349.
As noted by
the court:
Unconscious counsel equates to no counsel at all. Unconscious
counsel does not analyze, object, listen or in any way exercise
35
judgment on behalf of a client. . . . When we have no basis for assuming
that counsel exercised judgment on behalf of his client during critical
stages of trial, we have insufficient basis for trusting the fairness of that
trial and consequently must presume prejudice.
Id. (emphasis added). Likewise, in the case before us, there is simply no basis for
assuming that trial counsel exercised judgment on behalf of Valencia.
Three of our colleagues, concurring in the en banc opinion, contend that the
panel has erred in concluding that Valencia was constructively denied his right to
counsel and presuming prejudice ―on the facts of this case.‖ They assert that rather
than relying upon the Supreme Court‘s express affirmation in Strickland that the
―[a]ctual or constructive denial of counsel is legally presumed to result in
prejudice,‖ the panel should have evaluated the case as one concerning deficient
performance and prejudice. In support of their position, our colleagues rely upon
Bell. Their reliance is misplaced.
In Bell, the Supreme Court reiterated that a ―trial would be presumptively
unfair‖ if defense ―counsel entirely fails to subject the prosecution‘s case to
meaningful adversarial testing.‖ 535 U.S. at 695–96, 122 S. Ct. at 1851. It again
explained that ―if counsel entirely fails to subject the prosecution‘s case to
meaningful adversarial testing,‖ prejudice to the defendant is presumed. Id. at 697,
122 S. Ct. at 1851 (emphasis added). The Court emphasized that the argument of
the defendant in Bell was ―not that his counsel failed to oppose the prosecution
throughout‖ the trial, but that he failed to do so only at two ―specific points‖ in the
36
―sentencing‖ phase of trial. Id. (emphasis added). Thus, it concluded that the two
―aspects of counsel‘s performance‖ in the sentencing phase that were ―challenged by
respondent—the failure to adduce mitigating evidence and the waiver of closing
argument—are plainly of the same ilk as other specific attorney errors we have held
subject to Strickland‘s performance and prejudice components.‖ Id. at 697–98, 122
S. Ct. at 1851–52. Accordingly, prejudice to the defense was not to be legally
presumed. Id.
In fact, as emphasized by the Supreme Court, defense counsel in Bell did
subject the prosecution‘s case to meaningful adversarial testing. He sought to
prove that the defendant was not guilty of capital murder by reason of insanity and
presented the expert testimony of (1) a clinical psychologist that the defendant
suffered from substance abuse and posttraumatic stress disorders related to his
military service in Vietnam and (2) a neuropharmacologist about the defendant‘s
history of illicit drug use, which included consuming ―rather horrific‖ quantities and
―caused chronic amphetamine psychosis, hallucinations, and ongoing paranoia,
which affected [the defendant‘s] mental capacity and ability to obey the law. Id. at
690, 122 S. Ct. at 1848. Defense counsel also presented the testimony of the
defendant‘s mother, ―who spoke of her son coming back from Vietnam in 1969 a
changed person, his honorable discharge from service, his graduation with honors
from college, and the deaths of his father and fiancée . . . .‖ Id. Counsel was
37
further ―able to elicit through other testimony that [the defendant] had expressed
remorse for the killings.‖ Id.
In his opening statement to the jury in the punishment phase of the trial,
defense counsel ―called the jury‘s attention to the mitigating evidence already before
them.‖ Id. at 691, 122 S. Ct. at 1848. He suggested that the defendant was ―under
the influence of extreme mental disturbance or duress, that he was an addict whose
drug and other problems stemmed from the stress of his military service, and that he
felt remorse.‖ Id. Counsel ―urged the jury that there was a good reason for
preserving his client‘s life if one looked at ‗the whole man‘‖ and ―asked for mercy.‖
Id. Counsel also brought out that his client had been awarded the Bronze Star in
Vietnam and successfully objected to the State‘s proffer of photographs of the
victims‘ decomposing bodies. Id. Defense counsel then strategically waived his
final argument to prevent the lead prosecutor, ―an extremely effective advocate,
from arguing in rebuttal.‖
Id. at 692, 122 S. Ct. at 1848.
Here, in stark contrast, the record clearly reveals that Valencia‘s trial counsel
entirely failed to subject DFPS‘s case to meaningful adversarial testing at each
critical stage of the proceeding below. He did not know how to secure his client‘s
presence in court, made no effort to provide a defense at all, did not call any
witnesses, did not ask a single question of DFPS‘s only witness, did not know how
to preserve error, and effectively acquiesced in the termination of Valencia‘s
38
parental rights based upon scant and mostly inadmissible evidence in a trial that
lasted only a few minutes. Moreover, Valencia, unlike the defendant in Bell,
specifically argues that because his trial counsel‘s performance ―did not simply
consist of errors, omissions or poor trial strategy‖ and ―was so patently deficient,‖
Valencia ―was denied any meaningful assistance of counsel altogether‖ and
prejudice to his defense must be ―presumed.‖ 20 Valencia‘s point is that trial
counsel‘s wholesale nonperformance before, after, and throughout the entire
20
Our concurring colleagues assert that the issue of constructive denial of counsel ―is
not presented by this case.‖ However, Valencia expressly presents this as his first
issue in his briefing, and this Court has an obligation to directly address the issue.
See TEX. R. APP. P. 47.1.
Our colleagues further assert that the panel has conducted a deficient performance
and prejudice evaluation and there is ―no reason to presume prejudice because the
panel found prejudice.‖ The panel did highlight some of the many significant
failures of Valencia‘s trial counsel to act on Valencia‘s behalf throughout the
pre-trial, trial, and post-trial stages of the proceedings below. However, these
collective failures demonstrate that Valencia, in contrast to the defendant in Bell,
received no meaningful assistance of counsel at all. Valencia‘s trial was
―presumptively unfair.‖ Bell, 535 U.S. at 695–96, 122 S. Ct. at 1851.
The panel did conclude, as asserted by our concurring colleagues, that the post-trial
representation of Valencia by his trial counsel was essentially inert, due in part by
his failure to challenge the legal sufficiency of the evidence to support the trial
court‘s finding that Valencia had ―endangered‖ the child. However, the panel,
pursuant to Texas Supreme Court authority, addressed the legal sufficiency of the
evidence in regard to the trial court‘s finding of ―endangerment‖ only after
concluding that Valencia was constructively denied his right to counsel. See In re
J.O.A., 283 S.W.3d at 344–47 (addressing legal sufficiency point not preserved in
statement of appellant points as a result of ineffective assistance of counsel).
Thus, the panel addressed the threshold issue of ineffective assistance, and its
holding that Valencia was constructively denied his right to counsel was not, as the
majority asserts, an ―alternative holding.‖
39
exceedingly brief proceeding is not of the same ―ilk‖ as the two errors made by the
otherwise active trial counsel in Bell but makes it ―abundantly clear that [trial
counsel] failed to render any meaningful assistance.‖ His complaint is not one of
―shoddy representation,‖ but that he essentially had ―no representation at all.‖ See
Childress, 103 F.3d at 1228.
A review of the entire record before us compels a holding that Valencia
received no meaningful assistance of counsel and was denied an advocate for his
cause. There can be no reasonable trial strategy that would call for not securing the
presence of one‘s client at trial and then offering no defense for that client when he is
faced with termination of his fundamental parental rights based upon scant and
mostly inadmissible evidence. See In re J.O.A., 283 S.W.3d at 342 (concluding that
parent has fundamental liberty interest in maintaining custody and control of his
child). During trial, trial counsel idly sat by, doing nothing to ensure Valencia a fair
hearing, and he essentially allowed DFPS to terminate Valencia‘s parental rights in a
summary proceeding without having to produce legally sufficient, clear and
convincing evidence to support its case. Post-trial, he failed to include in the
statement of appellate points a challenge the legal and factual sufficiency of the trial
court‘s finding on endangerment, despite the scant evidence DFPS adduced on this
issue.
The Supreme Court has emphasized that the right to the effective assistance of
40
counsel ―is thus the right of the accused to require the prosecution‘s case to survive
the crucible of meaningful adversarial testing.‖ Cronic, 466 U.S. at 656, 104 S. Ct.
at 2045. The Supreme Court went on to say, ―if counsel entirely fails to subject the
prosecution‘s case to meaningful adversarial testing, then there has been a denial of
Sixth Amendment rights that makes the adversary process itself presumptively
unreliable.‖ Id. at 659, 104 S. Ct. at 2047.
Taken as a whole, trial counsel‘s performance can only be seen as, at best,
inert, and, at worst, acquiescing in DFPS‘s efforts to terminate Valencia‘s parental
rights. Trial counsel utterly failed to subject DFPS‘s case to any meaningful
adversarial testing such that the process itself was presumptively unreliable.
Because Valencia received no meaningful assistance of counsel and was effectively
denied an advocate for his cause, prejudice to his defense must be presumed as a
matter of law. See id. Simply put, there is nothing in the record before us which
demonstrates that Valencia received the assistance of counsel necessary to justify
reliance on the outcome of the summary proceeding.
Viewed objectively, a
contrary conclusion would be unreasonable.21
21
In accord with the United States Supreme Court‘s explanation of the second prong
of Strickland in regard to deficient performance claims, the Texas Supreme Court
has recently explained that when counsel fails to file a statement of appellate points,
a parent must establish the prejudice prong of Strickland by ―demonstrate[ing] that
he could prevail on appeal‖ on the issues counsel failed to preserve. In re B.G.,
No. 07-0960, 2010 WL 2636050, at *3 (Tex. July 2, 2010) (emphasis added). Thus,
the law does not require Valencia to show that the outcome at trial would have been
41
Accordingly, the panel unanimously sustained Valencia‘s first issue.22
different. Again, the critical question on appeal is whether the appellate court can
justifiably rely on the outcome of the proceeding. Strickland, 466 U.S. at 691–92,
104 S. Ct. at 2067.
22
In post-submission briefing, DFPS argues that Valencia cannot bring an ineffective
assistance of counsel claim because he had no right to statutorily appointed counsel
as he did not ―respond in opposition‖ when he was served on November 16, 2006,
file an affidavit of indigency, and seek appointment of counsel. See TEX. FAM.
CODE ANN. § 107.013 (Vernon Supp. 2009). DFPS asserts that Valencia must
have retained his trial counsel.
When trial counsel first acted on behalf of Valencia by filing the September 6, 2007
motion for continuance, he did so using a form provided by DFPS. This fact does
not support that Valencia had at that time retained trial counsel as his counsel. An
attorney may not unilaterally create an attorney-client relationship with a person;
that person must take some express or implied act to retain counsel. See Span
Enter. v. Wood, 274 S.W.3d 854, 858 (Tex. App.—Houston [1st Dist.] 2008, no
pet.). Moreover, in January 2008, trial counsel filed Valencia‘s answer, in which
he stated ―NOW COMES the undersigned duly appointed attorney ad litem for JOE
LEWIS VALENCIA . . . .‖ (Emphasis added.). Thus, the record clearly reflects
that trial counsel was acting as Valencia‘s court-appointed attorney.
Nevertheless, DFPS, in its second motion for en banc reconsideration, argues that
Valencia did not have the right to effective assistance of counsel because ―he did not
have a right to statutorily appointed counsel‖ and trial counsel‘s representation of
Valencia was based on trial counsel‘s (and, apparently, the trial court‘s)
misunderstanding of the scope of his appointment, that is, he had only been
appointed to represent the ‗unknown father,‘ a separate party who was entitled to
counsel because the unknown father had not filed with the paternity registry and
both his identity and location were unknown.‖
In support of this argument, DFPS relies on In re V.G., No. 04-08-00522-CV, 2009
WL 2767040, at *12 (Tex. App.—San Antonio Aug. 31, 2009, no pet.) (mem. op.)
(holding parent who retained counsel in parental rights termination case was not
entitled to raise ineffective assistance of counsel claim) and In re V.N.S., No.
13-07-00046-CV, 2008 WL 2744659, at *5 (Tex. App.—Corpus Christi July 3,
2008, no pet.) (mem. op.) (holding right to effective assistance of counsel is limited
to ―cases where indigent parents are appointed counsel and where parental rights are
being wholly terminated‖).
42
Legal Sufficiency
Having sustained his first issue, the panel appropriately addressed the merits
of Valencia‘s second issue. See In re J.O.A., 283 S.W.3d at 339 (addressing legal
sufficiency point not preserved in statement of appellant points as a result of
However, as explained by the Fort Worth Court of Appeals,
Just as the Sixth Amendment recognizes an accused‘s right to counsel
and that counsel is necessary to produce fair and just results, the
statutory guarantee of counsel recognizes a parent’s right to counsel
and imports that counsel‘s skill and knowledge is necessary to accord
parents in termination proceedings sufficient opportunity to meet the
state‘s ―awesome authority‖ to terminate their parental rights. Thus,
the State of Texas has recognized the importance of counsel for
parents in termination proceedings. Considering the State‘s parens
patriae interest in promoting the welfare of the child, the statutorily
granted right to counsel implies that counsel is necessary to an
accurate and just result.
In re K.L., 91 S.W.3d 1, 10B11 (Tex. App.—Fort Worth 2002, no pet.) (emphasis
added). Simply put, a parent who can retain counsel should not be deprived of the
right to effective assistance of counsel in a proceeding to terminate his parental
rights merely because he can afford to hire a lawyer. Implicit in the Texas
Legislature‘s granting of counsel upon an indigent parent once the State has
instituted formal proceedings to terminate his parental rights ―is recognition of a
parent‘s right to counsel in termination proceedings.‖ Id. at 10. Moreover, there
is no meaningful cure, in the absence of a right to effective assistance of counsel, for
a parent whose parental rights are erroneously terminated due to counsel‘s
deficiencies. Id. at 11. A claim for civil malpractice seeking monetary damages
is ―wholly inadequate‖ to compensate a parent for the loss of his parental rights in a
proceeding where counsel was ineffective. Id. A claim for ineffective assistance
is the only ―meaningful redress‖ for such a parent, whether counsel was appointed
or retained. See id. Thus, whether trial counsel was appointed pursuant to the
Family Code, simply appointed, or retained, Valencia was entitled to representation
necessary to ensure that the trial was fair. See Strickland, 466 U.S. at 685, 104 S.
Ct. at 2063.
43
ineffective assistance of counsel). In his second issue, Valencia argues that the
evidence is legally and factually insufficient to support termination of his parental
rights under section 161.001(1)(E) because there is no evidence in the record that he
―engaged in conduct or knowingly placed the child with persons who engaged in
conduct which endanger[ed] the physical or emotional well-being of the child.‖ He
asserts that ―[t]he record is completely silent as to . . . what acts or omissions [he]
committed which endangered the child.‖ He notes that although Heiskill, in her
affidavit, testified that Flores and the child had tested positive for opiates at the
child‘s birth, nothing in Heiskill‘s testimony implicated Valencia. He also asserts
that the trial court improperly took judicial notice of facts that were subject to
dispute and there is no evidence that the ―individual(s) identified in the criminal
records was actually appellant.‖
Standard of Review
A parent‘s right to ―the companionship, care, custody, and management‖ of
his children is a constitutional interest ―far more precious than any property right.‖
Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388, 1397 (1982) (internal
citation omitted). The United States Supreme Court has emphasized that ―the
interest of parents in the care, custody, and control of their children is perhaps the
oldest of the fundamental liberty interests recognized by this Court.‖ Troxel v.
Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2060 (2000). Likewise, the Texas
44
Supreme Court has also concluded that ―[t]his natural parental right‖ is ―essential,‖
―a basic civil right of man,‖ and ―far more precious than property rights.‖ Holick v.
Smith, 685 S.W.2d 18, 20 (Tex. 1985). Consequently,
[T]ermination proceedings should be strictly scrutinized, and
involuntary termination statutes are strictly construed in favor of the
parent.
Id. (emphasis added).
Because termination ―is complete, final, irrevocable, and divests for all time
that natural right . . . , the evidence in support of termination must be clear and
convincing before a court may involuntarily terminate a parent‘s rights.‖
Id.
(citing Santosky, 455 U.S. at 747–48, 102 S. Ct. at 1391–92; Richardson v. Green,
677 S.W.2d 497, 500 (Tex. 1984)). Clear and convincing evidence is ―the measure
or degree of proof that will produce in the mind of the trier of fact a firm belief or
conviction as to the truth of the allegations sought to be established.‖ TEX. FAM.
CODE ANN. § 101.007 (Vernon 2008); In re J.F.C., 96 S.W.3d 256, 264 (Tex. 2002).
Because the standard of proof is ―clear and convincing,‖ the Texas Supreme Court
has held that the traditional legal and factual standards of review are inadequate. In
re J.F.C., 96 S.W.3d at 264–66.
Instead, in conducting a legal sufficiency review in a parental-rights
termination case, we must determine whether the evidence, viewed in the light most
favorable to the finding, is such that the fact finder could reasonably have formed a
45
firm belief or conviction about the truth of the matter on which DFPS bore the
burden of proof. See id. at 266. In viewing the evidence in the light most
favorable to the judgment, we ―must assume that the fact finder resolved disputed
facts in favor of its finding if a reasonable fact finder could do so,‖ and we ―should
disregard all evidence that a reasonable fact finder could have disbelieved or found
to be incredible.‖ In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005) (citing In re
J.F.C., 96 S.W.3d at 266).
However, a fact finder may not, from meager circumstantial evidence,
reasonably infer an ultimate fact, none more probable than another. Hammerly
Oaks, Inc. v. Edwards, 958 S.W.2d 387, 392 (Tex. 1997). This Court has explained
that under the law of evidence, the term ―inference‖ means
[A] truth or proposition drawn from another which is supposed or
admitted to be true. A process of reasoning by which a fact or
proposition sought to be established is deduced as a logical
consequence from other facts, or a state of facts, already proved.
Marshall Field Stores, Inc. v. Gardiner, 859 S.W.2d 391, 400 (Tex. App.—Houston
[1st Dist.] 1993, writ dism‘d w.o.j.) (quoting BLACK‘S LAW DICTIONARY 700 (5th
ed. 1979)). Thus, to ―infer‖ a fact, one ―must be able to deduce that fact as a logical
consequence from other proven facts.‖ Id. In other words, there must be a logical
and rational connection between the facts in evidence and the fact to be inferred.
United States v. Michelena-Orovio, 702 F.2d 496, 504 (5th Cir.), aff’d on reh’g, 719
F.2d 738 (5th Cir. 1983) (en banc). With regard to the sufficiency of evidence in
46
circumstantial evidence cases, one inference cannot be based upon another inference
to reach a conclusion. Marathon Corp. v. Pitzner, 106 S.W.3d 724, 728 (Tex.
2003). Such stacking is not considered evidence. Id.
In proceedings to terminate the parent-child relationship brought under
section 161.001, DFPS must establish, by clear and convincing evidence, one or
more of the acts or omissions enumerated under subsection (1) of section 161.001
and that termination is in the best interest of the child. TEX. FAM. CODE ANN. §
161.001 (Vernon Supp. 2009). Both elements must be established, and termination
may not be based solely on the best interest of the child as determined by the trier of
fact. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).
Endangerment
To terminate the parent-child relationship on the ground that a parent has
―knowingly engaged in criminal conduct,‖ DFPS must prove that the criminal
conduct has resulted in the parent‘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 [DFPS‘s] filing [of
its] petition.
TEX. FAM. CODE ANN. § 161.001(1)(Q) (Vernon Supp. 2009) (emphasis added).
Here, however, DFPS could not ask the trial court to terminate Valencia‘s parental
rights on the ground that he had ―knowingly engaged in criminal conduct‖ because
47
the most serious criminal offense of which Valencia had been convicted, more than
two years prior to the child‘s birth, was a state jail felony offense. The maximum
punishment for a state jail felony is confinement in a state jail for two years. TEX.
PENAL CODE ANN. § 12.35(a) (Vernon Supp. 2009).
Thus, based solely upon Valencia‘s ―criminal history,‖ which consisted of
several misdemeanor and state jail felony offenses, DFPS asserted, and the trial
court found, that Valencia had ―engaged in conduct or knowingly placed the child
with persons who engaged in conduct which endanger[ed] the physical or emotional
well-being of the child.‖ See TEX. FAM. CODE ANN. § 161.001(1)(E) (Vernon
Supp. 2009) (emphasis added).
In support of this finding, DFPS relied on
Petitioner‘s Exhibit No. 1, the packet of copies, only two of which are certified, of
criminal complaints and judgments and sentences purportedly made and entered
against Valencia.
DFPS offered no other testimony from its only witness,
Washington, or any other evidence upon which the trial court could have reasonably
formed a firm belief or conviction that Valencia had actually endangered the child.
In sum, the only evidence offered to show that Valencia had endangered the child
was that (1) prior to the child‘s birth, he had been convicted of several misdemeanor
and state jail felony offenses; (2) at the time of the child‘s birth, he was in jail
pending trial for the offense of aggravated robbery, a case which was later
dismissed; and (3) after the child‘s birth, he stood accused by information of the
48
misdemeanor offense of assaulting Flores, who had already agreed to relinquish her
parental rights.
Setting aside the statutory requirements of section 161.001(1)(Q) and
disregarding the fact that the uncertified criminal history records were
inadmissible,23 intentional criminal activity that exposes a parent to incarceration
23
Criminal history records are public records that must be authenticated before they
are admissible. See Hull v. State, 172 S.W.3d 186, 189–90 (Tex. App.—Dallas
2005, pet. ref‘d); Carlock v. State, 99 S.W.3d 288, 295 (Tex. App.—Texarkana
2003, no pet.). The requirement of authentication is a ―condition precedent to
admissibility.‖ TEX R. EVID. 901(a). Authentication of a public record requires
evidence that a purported public record is from the public office where items of that
nature are kept.
TEX. R. EVID. 901(b)(7).
A public record can be
self-authenticating if the document (1) bears ―a seal purporting to be that of . . . any
State . . . and a signature purporting to be an attestation or execution‖ or (2) purports
―to bear the signature in the official capacity of an officer or employee of [the State],
having no seal, if a public officer having a seal and having official duties in the
[State] of the officer or employee certifies under seal that the signer has the official
capacity and that the signature is genuine.‖ TEX. R. EVID. 902(1), (2). In Carlock,
uncertified copies of existing judgments of the defendant‘s alleged prior convictions
were inadmissible because the defendant‘s parole officer was unable to provide the
proof necessary for authentication that the judgments were from the public office
responsible for maintaining those records. 99 S.W.3d at 295.
None of the copies of documents offered by DFPS to prove that Valencia had
previously been convicted of several misdemeanors and state jail felonies was
authenticated. Washington, like the parole officer in Carlock, could not have
authenticated the records. See id. Thus, the unauthenticated criminal history
records were inadmissible. Id. However, because trial counsel did not object to
their admission, Petitioner‘s Exhibit No. 1 must be considered in a sufficiency
review. See TEX. R. EVID. 802 (―Inadmissible hearsay admitted without objection
shall not be denied probative value merely because it is hearsay.‖); Tear v. State, 74
S.W.3d 555, 559 (Tex. App.—Dallas 2002, pet. ref‘d) (when reviewing legal
sufficiency, courts ―look to all the evidence in the record, including admissible and
inadmissible evidence, and direct and circumstantial evidence‖); see also Farley v.
Farley, 731 S.W.2d 733, 734 (Tex. App.—Dallas 1987, no writ) (applying rule 802
49
may be relevant to establish a course of conduct endangering the emotional and
physical well being of the parent‘s children. See Allred v. Harris County Child
Welfare Unit, 615 S.W.2d 803, 806 (Tex. App.—Houston [1st Dist.] 1980, writ ref‘d
n.r.e.) (evidence of father‘s commission of numerous robberies was relevant).
However, to support the trial court‘s finding, the record must contain clear and
convincing legally sufficient evidence that Valencia had engaged in ―endangering‖
conduct. ―Endanger‖ means to ―expose to loss or injury‖ or to ―jeopardize‖; it
consists of conduct that is ―more than a threat of metaphysical injury‖ or the
―possible ill effects of a less than ideal family environment‖; although, a child need
not suffer actual physical injury to constitute endangerment. Boyd, 727 S.W.2d at
533. Endangerment can occur through both the acts and omissions of a parent.
See In re R.D., 955 S.W.2d 364, 367 (Tex. App.—San Antonio 1997, pet. denied).
Evidence of a parent‘s past conduct, including a criminal history, may be
relevant and admissible if it shows a conscious course of conduct and instability
occurring both ―before and after‖ a child‘s birth. Avery v. State, 963 S.W.2d 550,
553 (Tex. App.—Houston [1st Dist.] 1997, no writ). Imprisonment is a ―factor to
be considered . . . on the issue of endangerment.‖ Boyd, 727 S.W.2d at 533.
However, the Texas Supreme Court has explained that
and explaining that unauthenticated judgment of another state‘s court, which would
be hearsay, was not denied probative value when admitted without objection).
50
Mere imprisonment will not, standing alone, constitute engaging in
conduct which endangers the emotional or physical well-being of a
child. . . . [I]f the evidence, including the imprisonment, shows a course
of conduct which has the effect of endangering the physical or
emotional well-being of the child, a finding under [section
160.001(1)(E)]24 is supportable.
Id. at 533–34 (emphasis added). For example, a trial court would not err in
admitting evidence of a parent‘s ―lengthy criminal record‖ involving narcotics abuse
in a case in which the parent had ―not altered her behavior.‖ Avery, 963 S.W.2d at
553. However, the termination of parental rights should not be used as punishment
in addition to imprisonment for the commission of criminal offenses. In re C.T.E.,
95 S.W.3d 462, 466 (Tex. App.—Houston [1st Dist.] 2002, pet. denied).
In Boyd, the trial court entered a decree terminating Boyd‘s parental rights
based on a finding that he had engaged in conduct or knowingly placed his child
with persons who had engaged in conduct that endangered the child. Boyd, 727
S.W.2d at 532. The supreme court expressly disapproved of the court of appeals‘
definition of ―danger‖ and its holding that danger cannot be inferred from parental
misconduct. Id. at 533. The gist of Boyd is that to constitute endangerment, it
need not be shown that a parent‘s conduct was directed at the child or that the child
actually suffered an injury. Id.
24
Boyd references section 15.02(1)(E), the predecessor to Texas Family Code section
161.001(1)(E).
51
The evidence presented at trial showed that Boyd had been arrested and jailed
for the then first degree felony offense of burglary two days before the child‘s birth;
after Boyd was paroled, he lived with the child for five months; he intermittently
held three different jobs while out on parole; and, within four months, Boyd was
again convicted of another burglary offense and sentenced to five years in prison.
Id. At the time the child was taken by DFPS, he had emotional problems, which
included sleep disorders, dietary issues, bed-wetting problems, and temper tantrums.
Id.
The supreme court did not hold, as asserted by the majority, that all
―[i]ntentional criminal activity that exposes a parent to incarceration is conduct that
endangers the physical and emotional well-being of a child.‖ Nor did the supreme
court, as asserted by DFPS, hold that the evidence presented was legally sufficient to
support the trial court‘s finding that Boyd had endangered the child; rather, it
remanded the case to the court of appeals to consider the issue.
Id. at 534.
However, the court of appeals did not issue a new opinion on remand.
Here, Washington did testify that Valencia had a ―repeated criminal history,‖
but DFPS offered no evidence to establish that Valencia‘s incarceration for
misdemeanors and state jail felonies, none of which involved narcotics, and all of
which resulted from offenses committed prior to the child‘s birth, had the effect of
endangering the child. Unlike Boyd, Valencia was not, after the birth of his child,
convicted of a first degree felony and sentenced to five years in prison. See id. at
52
533. In fact, Valencia had, at the time of trial, last been convicted of a state jail
felony offense on September 23, 2004, more than two years prior to the child‘s birth.
Washington, in response to a leading question, merely stated her conclusion that
because he had a ―repeated criminal history,‖ Valencia had engaged in conduct that
endangered the physical and emotional well-being of the child. DFPS did not
adduce any evidence to support Washington‘s conclusion or explain how Valencia‘s
criminal history had actually endangered the child.
Again, such evidence of incarceration alone will not support a reasonable
inference of actual endangerment, i.e., an inference ―deduced as a logical
consequence from other facts, or a state of facts, already proved.‖ See Marshall
Field, 859 S.W.2d at 400 (quoting BLACK‘S LAW DICTIONARY 700 (5th ed. 1979));
see also Michelena-Orovio, 702 F.2d at 504. The panel has not, as asserted by the
majority, ―discount[ed]‖ Boyd. Boyd clearly requires something more than ―mere
imprisonment‖ to establish, by clear and convincing evidence, a course of conduct
that has the effect of endangering the physical or emotional well-being of a child in
violation of section 160.001(1)(E).
727 S.W.2d at 533–34.
The majority‘s
contrary reading of Boyd is also inconsistent with the Texas Legislature‘s expressly
stated requirements for termination of parental rights for ―criminal conduct‖ listed in
Family Code section 161.001(1)(Q).
It is true that Valencia was in the Harris County Jail at the time of the child‘s
53
birth. However, the case for which he was being held was, as conceded by DFPS,
dismissed. He was not sentenced to prison as was Boyd. Also, Petitioner‘s
Exhibit No. 1 does show that Valencia, on the date of trial, stood accused by
information of the misdemeanor offense of assaulting Flores. However, DFPS did
not present any testimony to prove that Valencia had assaulted Flores, and nothing in
the record indicates that, as of the date the trial court entered its decree, he had been
convicted of the offense.25 It is hornbook law that a criminal information cannot be
considered as evidence that an accused has committed a criminal offense. Ex parte
Dumas, 110 Tex. Crim. 1, 2, 7 S.W.2d 90, 90 (1928); see also United States v. Cox,
536 F.2d 65, 72 (5th Cir. 1976) (―[i]t is hornbook law that indictments cannot be
considered as evidence‖); McLean v. State, No. 01-08-00466-CR, 2010 WL 335611,
at *5 (Tex. App.—Houston [1st Dist.] Jan. 28, 2010, no pet.) (stating jury charge
25
At oral argument, this Court invited briefing on the issues as to whether it could take
judicial notice of whether Valencia was or was not subsequently convicted of this
offense and whether we could consider any such information in deciding the issues
presented. After considering the arguments of the parties, the panel concluded that
we may not take judicial notice of a conviction that was not in existence at the time
of trial. See Brown v. Brown, 236 S.W.3d 343, 349 (Tex. App.—Houston [1st
Dist.] 2007, no pet.). In conducting its analysis, an appellate court is bound by the
record containing the evidence that was before the trial court at the time it entered its
decree. See Univ. of Tex. v. Morris, 344 S.W.2d 426, 429 (Tex. 1961). ―It is
axiomatic that an appellate court reviews the actions of a trial court based on the
materials before the trial court at the time it acted.‖ Hamm v. Millennium Income
Fund, L.L.C., 178 S.W.3d 256, 272 (Tex. App.—Houston [1st Dist.] 2005, pet.
denied) (quoting Methodist Hosps. of Dallas v. Tall, 972 S.W.2d 894, 898 (Tex.
App.—Corpus Christi 1998, no pet.)).
54
contained appropriate instruction that ―criminal information is not evidence of
guilt‖); Gonzales v. State, 977 S.W.2d 189, 190 (Tex. App.—Austin 1998, pet.
ref‘d) (―[a]n indictment or information is not evidence‖). In regard to the reference
of DFPS‘s counsel to ―photos of his assault,‖ the record shows that no photographs
were marked as exhibits, authenticated through witness testimony, or admitted into
evidence. Only Petitioner‘s Exhibit No. 1 was admitted into evidence, and the
record contains no such photographs.
The majority asserts that in the panel‘s view ―evidence of an assault [loses] all
legal significance‖ when the ―parental[-rights] termination case comes ahead of the
criminal trial‖ and the panel would require DFPS to prove that Valencia had been
―convicted‖ of the misdemeanor offense of assault before considering any such
assault in determining whether Valencia had endangered the child. However, we
simply note the well-established law that a copy of a misdemeanor information,
even if certified, does not constitute competent evidence of guilt. DFPS failed to
produce competent evidence, either through witness testimony or a record of
conviction, that Valencia had committed the misdemeanor offense of assault.
DFPS, disregarding the statutory requirements of section 161.001(1)(Q),
argues that a history of incarceration for criminal offenses alone can support a
finding of endangerment under 161.001(1)(E). In support of its argument, DFPS
relies on In re C.H., 89 S.W.3d 17, 28 (Tex. 2002), In re M.R., 243 S.W.3d 807, 819
55
(Tex. App.—Fort Worth 2007, no pet.), In re J.T.G., 121 S.W.3d 117, 126–27 (Tex.
App.—Fort Worth 2003, no pet.), In re U.P., 105 S.W.3d 222, 236 (Tex.
App.—Houston [14th Dist.] 2003, pet. denied), In re T.D.C., 91 S.W.3d 865, 873,
880 (Tex. App.—Fort Worth 2002, pet. denied), and In re S.D., 980 S.W.2d 758,
763 (Tex. App.—San Antonio 1998, pet. denied). However, in cases in which such
a criminal history is relied upon to support a finding of endangerment, including the
cases relied upon by DFPS, there is always, consistent with Boyd, other evidence
presented that puts the criminal history in the context of a pattern of endangering
conduct. See In re C.H., 89 S.W.3d at 21 (parent testified about extensive criminal
history, and psychologist testified ten year prison sentence would impede parent‘s
ability to parent); Robinson v. Tex. Dep’t of Protective and Regulatory Servs., 89
S.W.3d 679, 682–83 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (criminal
history plus parent‘s testimony that she had long history of narcotics abuse before
and after birth of children and father‘s testimony that children were afraid of
mother); Allred, 615 S.W.2d at 805–06 (criminal history plus evidence that father
beat mother after he learned she was pregnant and threatened to throw mother down
stairs to cause miscarriage); In re M.R., 243 S.W.3d at 819 (criminal history plus
testimony that parent used narcotics in front of child and parent‘s incarceration
affected ability to take care of child); In re J.T.G., 121 S.W.3d at 131, 133 (criminal
history plus evidence of parent‘s violence in front of child, abuse as child, and abuse
56
of narcotics and alcohol); In re U.P., 105 S.W.3d at 231 (criminal history plus expert
testimony about impact on child and testimony about parent‘s use of narcotics); In re
S.F., 32 S.W.3d 318, 321 (Tex. App.—San Antonio 2000, no pet.) (extensive
criminal history plus caseworker‘s testimony about parent‘s marijuana use and
discipline problems while incarcerated and the effect this had on child); In re S.D.,
980 S.W.2d at 763 (criminal history plus testimony that parent abused narcotics and
alcohol and had inability to support family).26
These cases illustrate that the mere fact that Valencia had a criminal history
prior to the birth of the child does not constitute clear and convincing, legally
sufficient evidence, on its own, to support a finding under section 161.001(1)(E).
Again, Boyd is clear that ―if the evidence, including the imprisonment, shows a
course of conduct which has the effect of endangering the physical or emotional
well-being of the child, a finding under [section 160.001(1)(E)] is supportable.‖
727 S.W.2d at 534 (emphasis added).
For example, in In re J.N.R., this Court held that the evidence was legally
26
See also Padilla v. Dep’t of Family and Protective Servs., No. 01-07-00313-CV,
2008 WL 525750, at *1–2 (Tex. App.—Houston [1st Dist.] Feb. 28, 2008, no pet.)
(mem. op.) (criminal history plus testimony as to multiple prior referrals with
DFPS); Callahan v. Brazoria County Children’s Protective Servs. Unit, No.
01-01-00916-CV, 2003 WL 21299952, at *1 (Tex. App.—Houston [1st Dist.] June
5, 2003, no pet.) (mem. op.) (criminal history plus psychiatrist‘s testimony that
father had propensity for violence and anti-social personality disorder, mother‘s
testimony about father‘s violence towards family, and father‘s testimony about
marijuana use).
57
sufficient to support the trial court‘s finding that a father had endangered his child,
when, while on parole and participating in a DFPS family service plan, the father,
―after knowing his parental rights were in jeopardy, . . . continued to engage in
criminal activity that resulted in his being jailed.‖ 982 S.W.2d 137, 142 (Tex.
App.—Houston [1st Dist.] 1998, no pet.), overruled on other grounds, In re C.H., 89
S.W.3d 17 (Tex. 2002). After the father was released from prison and placed on
parole, he became an active parent in his child‘s life for five months. Id. at 140.
The father, working with DFPS, agreed to and signed a family service plan, which
―required him to agree to stay out of jail, participate in his parole tasks, develop his
relationship with [the child], and maintain his employment.‖ Id. The father failed
to comply with his agreement when he was arrested on three separate occasions
while on parole. Id. at 142. At the time of his last arrest, he was outside the area to
which he was restricted under the terms of his parole, and his parole officer testified
that he was seeking a revocation of the father‘s parole. Id. Accordingly, we
concluded that this evidence showed that the father, while on parole and after
agreeing to the requirements of the family service plan, ―continued to engage in
conduct that would endanger the emotional well-being of [the child].‖27 Id.
27
See also In re H.G.H., No. 14-06-00137-CV, 2007 WL 174371, at *9 (Tex.
App.—Houston [14th Dist.] Jan. 25, 2007, no pet.) (mem. op.) (holding
―[a]ppellant‘s repeated incarceration, continuing propensity towards criminal
conduct, failure to support [the child], and failure to complete, or make a good-faith
58
In this case, the record shows that DFPS created a family service plan for
Valencia in January 2007 prior to the establishment of his parentage. As per the
plan, Washington was to play an active role in assessing Valencia‘s progress against
the plan. However, there is no evidence in the record that Valencia ever received a
copy of the plan or even agreed to the plan.28
Nor is there any evidence that
effort to complete, the court-ordered family services constitute a course of conduct
which endangered the physical or emotional well-being of [the child]‖).
28
In its third motion for en banc reconsideration, DFPS, in an argument that it did not
make to the trial court, in its briefing to this Court, or in its oral argument to this
Court, asserts that Valencia endangered the child by not complying with the court
ordered family service plan. DFPS asserts that Valencia had a ―responsibility to
comply with the terms of the Department‘s service plan by court order,‖ regardless
of whether he ―agreed‖ to the plan, and DFPS cites to Texas Family Code section
263.103, which it asserts says ―plan may take effect even if Department files it
without parent‘s signature.‖ While section 263.103 provides that the ―plan takes
effect . . . when the department . . . files the plan without the parents‘ signatures,‖
DFPS ignores the remainder of the statute. See TEX. FAM. CODE. ANN. §
263.103(d) (Vernon 2008). The statute also requires that ―the child‘s parents and
the representative of the department . . . shall discuss each term and condition of the
plan‖ and ―[i]f the department . . . determines that the child‘s parents are unable or
unwilling to sign the service plan, the department may file the plan without the
parents‘ signatures.‖ Id. § 263.103(a), (c). The record contains no evidence that
DFPS complied with its statutory requirements before filing the plan. The Family
Code does provide for termination of parental rights if a parent ―failed to comply
with the provisions of a court order that specifically established the actions
necessary for the parent to obtain the return of the child who has been in the
permanent or temporary managing conservatorship of the Department of Family
and Protective Services for not less than nine months as a result of the child‘s
removal from the parent.‖ TEX. FAM. CODE. ANN. § 161.001(1)(O) (Vernon Supp.
2009). However, even though the trial court ordered Valencia to comply with the
family service plan, the record contains no evidence regarding whether or not
Valencia did so. Moreover, DFPS did not even ask the trial court to consider this
section as a ground for terminating Valencia‘s parental rights, and the trial court
made no such finding.
59
Washington engaged Valencia in any way regarding the plan. In fact, the record
shows that Washington first met Valencia at a hearing one year later in January 2008
when Valencia first appeared in the case and offered to take a paternity test. Here,
unlike in In re J.N.R., there is no additional evidence that Valencia‘s criminal history
constituted a course of endangering conduct.
At trial, DFPS relied solely upon Valencia‘s criminal history of misdemeanor
and state jail felony offenses to support the trial court‘s finding that Valencia had
actually endangered the child. Now, on appeal, DFPS additionally asserts that
Valencia engaged in endangering conduct through his failure to take ―swift and
appropriate actions in support of [the child] during the pendency of the case or to
secure reunification,‖ ―his apathetic attitude,‖ and ―his failure to take any action to
check on the child or initiate visits before or after [he took the paternity test].‖29 In
29
In its third motion for en banc reconsideration, DFPS asserts that Valencia, after the
State, in March 2007, dismissed the case against him for the offense of aggravated
robbery, ―never took any action to care for or support the child in the full year when
he was not subject to incarceration.‖ The majority asserts that Valencia, ―when not
incarcerated,‖ had not ―seen the child, paid support, or made arrangements to
provide [the child] with food, clothing, shelter or care‖ or ―inquired about or
supported the child or made any effort to see to her needs.‖ However, as noted
above, the trial record in no way supports the assertions of DFPS or the majority.
First, the record is unclear as to if, or for how long, Valencia was out of jail after the
State dismissed in March 2007 the aggravated robbery case. In fact, during the
―full year‖ that DFPS asserts that Valencia was not incarcerated, the clerk‘s record
shows that DFPS, on September 6, 2007, drafted an ―Unopposed Motion for
Continuance,‖ which was then offered by Valencia‘s trial counsel to bench warrant
Valencia out of jail.
60
Second, even if Valencia was out of jail for the ―full year,‖ the record is silent as to
any of Valencia‘s actions or omissions in regard to the child prior to January 2008.
In her brief testimony, Washington stated that Valencia, ―since‖ January 2008,
when ―he offered to take a paternity test,‖ which later revealed that he is the father
of the child, had not ―contact[ed]‖ DFPS or attempted ―to check‖ on the child. The
remainder of the reporter‘s record does not address any acts or omissions of
Valencia in regard to the child from March 2007 to January 2008.
More importantly, DFPS simply did not present any evidence that Valencia ―never‖
cared for the child or failed to act regarding child support or the provision of food,
clothing, shelter, or care during the pendency of the case.
Third, contrary to the majority‘s assertions, the 111-page clerk‘s record, consisting
of the usual pleadings, orders, and docket sheets, contains no evidence regarding
any act or omission of Valencia in regard to the child. Heiskill‘s affidavit
testimony regarding why the child was taken from the mother and placed into
DFPS‘s care mentions Valencia only to say that he was in jail pending trial on the
robbery case and could not be interviewed because he was in quarantine. And, as
discussed above, a family service plan was filed with the trial court, but the record
includes no progress reports or any information regarding Valencia‘s compliance or
failure to comply with the plan.
In sum, the majority essentially asserts that the trial court could have inferred that
Valencia had engaged in conduct that actually endangered the child from
Washington‘s answer to these two questions (1) ―And has he made any attempts to
check on the welfare of the child?‖ Answer: ―No‖ and (2) ―Based on over 10 years
of repeated criminal history including assault of the mother, are you asking that Joe
Valencia‘s rights be terminated and he has engaged in conduct that endangers the
physical and emotional well-being of the child?‖ Answer: ―Yes.‖ This does not
constitute clear and convincing evidence that Valencia had actually endangered the
child.
As noted above, to ―infer‖ a fact, one ―must be able to deduce that fact as a logical
consequence of other proven facts.‖ Marshall Field Stores, Inc. v. Gardiner, 859
S.W.2d 391, 400 (Tex. App.—Houston [1st Dist.] 1993, writ dism‘d w.o.j.).
Stated another way, to be legitimate or permissible, an inference must be deduced as
a logical consequence of the facts presented in evidence, and there must be a logical
and rational connection between the facts in evidence and the fact to be inferred.
United States v. Michelena-Orovio, 702 F.2d 496, 504 (5th Cir.), aff’d on reh’g, 719
F.2d 738 (5th Cir.1983) (en banc). Even if we accord the sparse record with the
61
support of its position, the majority has seized upon these assertions, which are not
supported by the record. However, ―[i]t is axiomatic that an appellate court reviews
the actions of a trial court based on the materials before the trial court at the time it
acted.‖ Hamm v. Millennium Income Fund, L.L.C., 178 S.W.3d 256, 272 (Tex.
App.—Houston [1st Dist.] 2005, pet. denied) (quoting Methodist Hosps. of Dallas v.
Tall, 972 S.W.2d 894, 898 (Tex. App.—Corpus Christi 1998, no pet.)).
Valencia was in the Harris County Jail in November 2006 at the time the child
was born and when DFPS removed the child from Flores‘s care two days later and
sued Valencia to terminate the parent-child relationship. It is clear that Valencia‘s
incarceration pending trial on a case which was later dismissed does not alone
constitute endangering conduct. Valencia had had no contact with the child and,
because he was in jail, he could not take ―swift and appropriate actions in support of
[the child]‖ 30 or appear in court on November 16, 2006, the date of the first
meaning gleaned by the majority, Washington‘s two answers, unsupported by any
other evidence in the record, did not give the trial court, as the fact finder, a basis
from which it could have reasonably inferred and formed a firm belief or conviction
that Valencia had actually ―endangered‖ the child.
30
Contrary to the assertion of the majority, the panel does not ―excuse‖ Valencia‘s
―abandonment‖ of his child. Texas Family Code section 161.001(1)(N) provides
for termination of parental rights if a parent ―constructively abandoned the child
who has been in the permanent or temporary managing conservatorship of [DFPS]
. . . for not less than six months, and . . . the department . . . has made reasonable
efforts to return the child to the parent; . . . the parent has not regularly visited or
maintained significant contact with the child; and . . . the parent has demonstrated an
inability to provide the child with a safe environment[.]‖ TEX. FAM. CODE. ANN. §
62
adversary hearing and the date that he was served with DFPS‘s petition. He simply
had no time to retain counsel between the time that he was served, while in jail at
8:40 a.m., and the time of the first adversary hearing at 1:00 p.m. Neither could he
appear and request the appointment of counsel.
In sum, the only evidence offered by DFPS on the issue of endangerment
consisted of copies, mostly uncertified, of criminal records purportedly showing that
Valencia had, (1) prior to the child‘s birth, been convicted of several misdemeanor
and state jail felony offenses; (2) at the time of the child‘s birth, was in jail pending
trial for the offense of aggravated robbery, a case which was later dismissed; and (3)
after the child‘s birth, stood accused by information of the misdemeanor offense of
assaulting Flores, who had already agreed to relinquish her parental rights.
Moreover, the record conclusively establishes that Valencia had never had
possession of the child.
Viewing all of the evidence in the light most favorable to the trial court‘s
finding, the trial court could not have reasonably formed a firm belief or conviction
that Valencia had engaged in a course of conduct that endangered the physical and
emotional well-being of the child. See TEX. FAM. CODE ANN. § 161.001(1)(E).
Thus, the panel held that the evidence is legally insufficient to support the trial
161.001(1)(N) (Vernon Supp. 2009). As revealed in the trial transcript, DFPS did
not even ask the trial court to consider ―abandonment‖ as a ground for terminating
Valencia‘s parental rights, and the trial court made no such finding.
63
court‘s finding that Valencia, based on his prior history of incarceration for criminal
offenses, actually endangered the child. See Boyd, 727 S.W.2d at 531.
Accordingly, the panel unanimously sustained Valencia‘s second issue.
En Banc Reconsideration
Valencia was constructively denied his statutory right to counsel, and his
parental rights were terminated in a summary proceeding that lasted only a few
minutes.
After his court-appointed trial counsel failed to secure Valencia‘s
presence in court so that he could defend himself, trial counsel essentially
acquiesced in the termination of Valencia‘s parental rights. The egregious conduct
of counsel and the termination of Valencia‘s parental rights based on legally
insufficient evidence shock the conscience and amount to a gross violation of the
Rule of Law.
Accordingly, the panel unanimously reversed that portion of the trial court‘s
decree terminating the parent-child relationship between Valencia and the child and
rendered judgment that Valencia‘s parental rights were not terminated.
As
demonstrated above, the panel did so thoughtfully and dispassionately, objectively
applying the facts in evidence to the governing law after thoroughly reviewing the
record and the briefs and hearing the oral arguments of the parties. The panel
carefully allowed both sides to thoroughly present their case even through the point
of post-submission briefing and a number of motions for rehearing, and the panel
64
thoroughly addressed the arguments made.
As noted by the Fifth Circuit, there is nothing ―new‖ about the rule of
presumed prejudice in cases in which the right to counsel has been constructively
denied; it is in fact ―well-established.‖ Burdine, 262 F.3d at 348. Again, the
Supreme Court, in Strickland, specifically noted:
Actual or constructive denial of the assistance of counsel altogether
is legally presumed to result in prejudice.
466 U.S. at 692, 122 S. Ct. at 2067 (emphasis added). Moreover, in a very recent
opinion, the Texas Supreme Court has again emphasized that
[T]he private interests affected in a parental rights termination case are
of the highest order. As the [United States] Supreme Court has said,
natural parents have a ―fundamental liberty interest . . . in the care,
custody, and management of their child [which] does not evaporate
simply because they have not been model parents or have lost
temporary custody of their child to the State.‖ We have said that
―termination cases implicate fundamental liberties‖ and that ―a parent‘s
interest in maintaining custody of and raising his or her child is
paramount.‖
In re B.G., No. 07-0960, 2010 WL 2636050, at *4 (Tex. July 2, 2010) (citing
Santosky v. Kramer, 455 U.S. 745, 753–54, 102 S. Ct. 1388, 1394–95 (1982), In re
B.L.D., 113 S.W.3d 340, 351–352 (Tex. 2003), and In re M.S., 115 S.W.3d at 547))
(emphasis added). Again, termination of parental rights proceedings are to be
strictly construed. Holick, 685 S.W.2d at 20.
Yet, the majority, disagreeing with the result compelled by the governing law,
has taken the case from the assigned panel. It has done so improperly.
65
Violation of the En Banc Standard
Texas‘ intermediate courts of appeals ―sit in sections as authorized by law,‖
and the ―concurrence of a majority of the judges sitting in a section is necessary to
decide a case.‖ TEX. CONST. Art. V, § 6. Thus, intermediate appellate judges ―sit
in panels of three or more, as in the federal circuit courts of appeals.‖ O’Connor v.
First Court of Appeals, 837 S.W.2d 94, 96 (Tex. 1992).
Unless a court of appeals with more than three justices votes to decide a case
en banc, the case ―must be assigned for decision to a panel of the court consisting of
three justices.‖ TEX. R. APP. P. 41.1(a). The panel‘s opinion ―constitutes the
court‘s opinion, and the court must render a judgment in accordance with the panel
opinion.‖ Id. Thus, the panel acts essentially as a three-judge court, possessing
full authority to decide the cases before it on behalf of the entire court. Thompson
v. State, 89 S.W.3d 843, 856 (Tex. App.—Houston [1st Dist.] 2002, pet. ref‘d)
(Jennings, J., concurring in denial of en banc consideration).
Accordingly, in Texas, en banc consideration of a case is disfavored:
En Banc Consideration Disfavored. En banc consideration of a case is
not favored and should not be ordered unless necessary to secure or
maintain uniformity of a court‘s decisions or unless extraordinary
circumstances require en banc consideration.
TEX. R. APP P. 41.2(c). This standard has been described as ―exacting,‖ and the
failure to follow it raises ―fundamental‖ issues.
Schindler Elevator Corp. v.
Anderson, 78 S.W.3d 392, 423–24 (Tex. App.—Houston [14th Dist.] 2001, judgm’t
66
vacated without reference to the merits due to settlement by the parties, No.
02-0426, 2003 Tex. Lexis 68 (Tex. May 22, 2003) (mem. op.) (Frost, J. concurring
in denial of en banc consideration) (denial of en banc consideration ―compelled by
the exacting standard for en banc review‖) (Edelman, J. concurring in denial of en
banc consideration) (failure to follow en banc standard raises ―fundamental‖ issues
of (1) ―How important is it to our system of justice that decisions be reached in an
impartial manner, i.e., based on the issues, law, and evidence presented rather than
other considerations?‖ and (2) ―What could suggest a greater lack of impartiality
than to decide a case based on . . . an issue not raised by either party?‖). Thus,
The standard for en banc consideration is not whether a majority of the
en banc court may disagree with all or a part of a panel opinion.
Neither is an assertion that an issue is ―important‖ sufficient. Rather,
when there is no conflict among panel decisions, the existence of
―extraordinary circumstances‖ is required before en banc consideration
may be ordered.
Thompson, 89 S.W.3d at 856 (Jennings, J., concurring in denial of en banc
consideration).
In regard to Federal Rule of Appellate Procedure 35, which
concerns en banc review in the federal courts of appeal, the Fifth Circuit has noted:
A petition for rehearing en banc is an extraordinary procedure that is
intended to bring to the attention of the entire court an error of
exceptional public importance or an opinion that directly conflicts with
prior Supreme Court, Fifth Circuit or state law precedent . . . .
5TH CIR. R. 35 I.O.P. Petition for Rehearing En Banc. Generally, alleged errors
regarding the facts of the case, including sufficiency of the evidence challenges, are
67
―matters for panel rehearing, but not for rehearing en banc.‖ Id.
Here, en banc reconsideration was not at all ―necessary‖ to maintain
uniformity with prior First Court of Appeals decisions. Moreover, the panel‘s
holdings in regard to the particularly egregious circumstances presented in this case
do not in any way amount to an ―extraordinary circumstance‖ which ―requires‖ en
banc consideration.
The simple fact is that the majority does not like the
―well-established‖ rule of presumed prejudice and the result compelled by the
governing law. As noted above, the ―obvious problem‖ with such ―results-oriented
judging‖ is that ―it produces bad results because it guts the rule of law.‖ 31 When a
court, even to reach what it believes to be a more desirable result in a particular case,
fails to perform, dispassionately and impartially, its solemn duty to ensure due
process of law, the Rule of Law is violated, and, on that rule, society can no longer
depend.
The Majority’s Errors
Taking upon itself the role of advocate, the majority has considered as fact
what DFPS has merely asserted in its briefing. Appellant courts are supposed to be
bound by the record containing the evidence that was before the trial court. See
Hamm, 178 S.W.3d at 272. However, as revealed by the trial transcript above,
much of what is asserted by DFPS and the majority as fact is either objectively not
31
ORIGINALISM at 26.
68
true or not supported in the record. The majority proceeds to decide the case en
banc, conditionally affirming the trial court‘s judgment. It offers a post-decision
abatement, requested by neither party, and it fails to adequately address the actual
arguments made by the parties and the pertinent controlling authorities. See TEX.
R. APP. P. 47.1.
Taking upon itself the role of policy maker, the majority, in derogation of the
―well-established‖ governing law, creates new law.
It, on its own initiative,
suggests to Valencia that he request an abatement for a hearing on whether his trial
counsel‘s deficient performance harmed him. Again, neither party has asked for
such an abatement to be made after the panel has already decided the case and the
majority has conditionally done so. It is interesting to note that in criminal cases,
this Court, also in an en banc opinion, has specifically precluded criminal defendants
from requesting an abatement to restart the appellate timetables to file new trial
motions when trial courts untimely appoint appellate counsel after new trial
deadlines have expired.
See Benson v. State, 224 S.W.3d 485, 488 (Tex.
App.—Houston [1st Dist.] 2007, no pet.), overruling, Jack v. State, 64 S.W.3d 694
(Tex. App.—Houston [1st Dist.] 2002, pet. dism‘d). More importantly, Valencia
simply does not need an abatement to prove up in the trial court the prejudice to his
defense that he has already established in this Court as a matter of law. This
presents Valencia with no new ―opportunity.‖ Rather, in effect, such an abatement
69
would give DFPS a ―do-over‖ to put in the record what it failed to establish when it
tried the case.
In support of their conditional affirmance and ―abatement‖ suggestion, the
majority relies on In re J.O.A. and In re M.S. Neither case supports the majority‘s
position. In neither case did the Texas Supreme Court abate or remand the parent‘s
ineffective assistance of counsel claim to the trial court for a hearing. In In re
J.O.A., the supreme court, after disagreeing with the court of appeals‘ holding that
the evidence was legally insufficient to support termination of a father‘s parental
rights, noted that the court of appeals had also held that the evidence was factually
insufficient to support termination. 283 S.W.3d at 347. Accordingly, the supreme
court ―remand[ed] the cause to the trial court for a new trial.‖ Id. In In re M.S.,
after holding that a trial counsel‘s failure to preserve a factual sufficiency challenge
in a termination of parental rights case ―may constitute ineffective assistance of
counsel,‖ the supreme court remanded the case to the court of appeals to ―determine
whether counsel‘s failure to preserve the factual sufficiency issue was not
objectively reasonable, and whether this error deprived [the mother] of a fair trial.‖
115 S.W.3d at 550.
Moreover, the majority mischaracterizes what a defendant must actually
establish to meet the second prong of Strickland. As expressly explained by the
United States Supreme Court in Strickland, a defendant need not, as the majority
70
asserts, show that the outcome of his trial ―would have been different had counsel
provided him with a good defense‖ or the errors of counsel determined the outcome
of his case. He need not even ―show that counsel‘s deficient conduct more likely
than not altered the outcome in the case.‖ Strickland, 466 U.S. at 693, 104 S. Ct. at
2068.
Rather, he must simply show a ―reasonable probability‖ that the outcome
of the proceeding would have been different, i.e., one sufficient to undermine
confidence in the outcome. Id. at 694, 104 S. Ct. at 2068. Again,
The result of a proceeding can be rendered unreliable, and hence the
proceeding itself unfair, even if the errors of counsel cannot be shown
by a preponderance of the evidence to have determined the outcome.
Id. (emphasis added).
Thus, the majority‘s bizarre and awkward abatement
procedure in not only unnecessary, it is actually pointless.
In regard to the legal sufficiency of the evidence, to the extent that the
majority opinion can be read to hold that evidence of Valencia‘s history of
misdemeanor and state jail felony convictions and the fact that he stood accused by
information of the misdemeanor assault of Flores is legally sufficient to support the
trial court‘s finding of endangerment, the majority mischaracterizes the Texas
Supreme Court‘s holding in Boyd. Also, the majority‘s conclusion is not consistent
with a strict construction of the statute in favor of the parent. See Holick, 685
S.W.2d at 20.
Moreover, the conclusion is not only inconsistent with
well-established law, it renders Family Code section 161.001(1)(Q) meaningless.
71
If allowed to stand, the majority‘s opinion will subject literally thousands of
similarly situated parents, male and female, in the Houston area to termination of
their parental rights as a post-conviction punishment. Under the majority‘s en banc
opinion, a mother with a criminal history of misdemeanor and state jail felony
convictions similar to Valencia‘s could have her parental rights terminated if she is
ever accused of the misdemeanor offense of assault by slapping another person with
her hand. This is not the law as intended by the Texas Legislature.
Simply put, the majority has not only taken control of the case from the
assigned panel in violation of the en banc standard, it has, in an en banc opinion,
committed several errors of such importance to the state‘s jurisprudence that they
should be corrected. See TEX. GOV‘T CODE ANN. § 22.001(a)(6) (Vernon 2004).
Conclusion
In sum, the majority, in disregard of the clearly articulated standard for en
banc consideration, has taken control of the case from a unanimous panel that had
impartially and dispassionately decided the issues presented to it based upon the
facts in the record and the ―well-established‖ governing law. In doing so, and in
failing in its duties to ensure due process of law and to correct the erroneous fact
finding of the trial court, the majority not only excuses the behavior of Valencia‘s
trial counsel and the errors of the trial court, it actually encourages and promotes
them. Thus, the majority, in its en banc opinion, ―encourage[s] methods of decision
72
making that make failure even more likely and then inevitable.‖32
In accord with the governing law, I would reverse that portion of the trial
court‘s judgment terminating Valencia‘s parental rights to the child and render
judgment that his parental rights are not terminated.
The majority‘s opposition to the governing law is palpable, its errors are
profound, and its action in taking control of this case is simply breathtaking.
Terry Jennings
Justice
Justice Bland, joined by Chief Justice Radack, and by Justices Alcala, Hanks, and
Massengale, for the en banc court.
Justice Jennings, dissenting, joined by Justice Higley.
Justice Keyes, concurring in part and dissenting in part.
Justice Sharp, dissenting, in an opinion to follow.
Justice Massengale, concurring, joined by Justices Alcala and Hanks.
32
DÖRNER at 10.
73
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