Jesus O. Reyna v. State ( 1999 )

Jesus O. Reyna v.State

    IN THE

TENTH COURT OF APPEALS

No. 10-98-340-CR

     JESUS O. REYNA,

                                                                         Appellant

     v.

     THE STATE OF TEXAS,

                                                                         Appellee

From the 278th District Court

Madison County, Texas

Trial Court # 10,025

                                                                                                                                                                                                                         

O P I N I O N

                                                                                                               Â

      A jury convicted Jesus Reyna of aggravated assault and possession of a deadly weapon in a penal institution, and sentenced him to seven years in the Department of Criminal Justice. See Tex. Pen. Code Ann. §§ 22.02, 46.10 (Vernon Supp. 1999). Reyna appeals on grounds that he was denied effective assistance of counsel at various stages in the trial. Because we find that Reyna failed to preserve this issue for review, we will affirm.

      At the time of the assault, Reyna was an inmate in the Ferguson Unit of the Department of Criminal Justice at Midway, Texas. On April 23, 1996 during the prison’s daily recreation period, a fight broke out between a group of Mexican Nationals and a group of Hispanics from Dallas and Houston. Jim Boyd, a correctional officer assigned to the recreation area, testified that he observed Reyna stab the victim, Mark Rocha. Boyd further testified that the inmates were ordered to lay down their weapons, and he observed Reyna lay a weapon on the ground. After the inmates were subdued, Boyd went to the spot where Reyna surrendered the weapon and recovered a six and one half inch piece of metal that was sharpened on one end and that had a piece of sheet wrapped around the other end.

      Reyna contends that his trial counsel committed several errors that cumulatively denied his right to effective assistance of counsel. He alleges his defense was inadequate in that counsel (1) failed to develop a viable self-defense or necessity defense argument, (2) failed to object to questions by the prosecutor regarding extraneous acts of misconduct committed by Reyna during his confinement, and (3) failed to object to the prosecutor’s comment on Reyna’s refusal to give a statement.

      Before a litigant may present a complaint for appellate review, Rule 33.1 of the Rules of Appellate procedure provides that the record must show (1) the complaint was made to the trial court by a timely request, objection or motion, and (2) the trial court ruled on the request, objection or motion or expressly refused to rule and the complaining party objected to such refusal. Tex. R. App. P. 33.1(a). The record does not indicate that Reyna’s complaint of ineffective assistance of counsel was ever presented to the trial court. See Gonzales v. State, 994 S.W.2d 369, 372-73 (Tex. App.–Waco 1999, no pet.). Thus, nothing is presented for our review.

      The judgment of the trial court is affirmed.

                                                                         PER CURIAM

 

Before Justice Vance,

      Justice Gray, and

      Chief Justice McDonald (Retired)

      (Chief Justice McDonald not participating)

Opinion delivered and filed October 27, 1999

Affirmed

Do not publish

 

the evidence is factually insufficient.  A court of appeals should detail in its opinion why it has concluded that a reasonable factfinder could not have credited disputed evidence in favor of the finding.

 

Id. at 266-67 (footnotes and citations omitted).  We view the evidence in a neutral light when reviewing for factual sufficiency.

            Only one predicate act under section 161.001(1) is necessary to support a judgment of termination when there is also a finding that termination is in the child's best interest.  In re A.V., 113 S.W.3d 355, 362 (Tex. 2003).

Grounds for Termination    

The petition for termination alleged and the court found that J.W. knowingly placed or knowingly allowed H.W. to remain in conditions or surroundings that endangered her physical or emotional well-being and that he engaged in conduct or knowingly placed H.W. with persons who engaged in conduct that endangered her physical or emotional well-being.  Tex. Fam. Code Ann. § 161.001(1)(D) (Vernon Supp. 2007).

Section 161.001(1)(D) of the Texas Family Code states that the court may order termination of the parent-child relationship if the court finds by clear and convincing evidence that the parent has knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child.  Id. § 161.001(1)(D).  “Endanger” means to expose to loss or injury or to jeopardize.  Texas Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).  However, it is not necessary that the child actually suffer injury.  Id.  Although this provision addresses the child’s surroundings rather than the parent’s conduct, conduct by a parent or other resident of a child’s home can produce an environment that endangers the physical or emotional well-being of a child.  In re C.L.C., 119 S.W.3d 382, 392 (Tex. App.—Tyler 2003, no pet.).

Ninfa Torres, a Department supervisor, testified that she became involved with H.W.’s case when the Department received allegations of neglectful supervision and drug use.  The Department sought emergency removal of H.W., who had a history of being in foster care, when a domestic violence incident over drugs occurred at J.W.’s home.  During that incident, J.W. got high on cocaine and chased his wife (H.W.’s stepmother) around with a stick.

When J.W. was interviewed about the allegations, he tested positive for cocaine and admitted that he frequently left H.W. with his wife, who used methamphetamines and had issues with depression.  Torres testified that this was particularly dangerous because H.W. was also diagnosed with clinical depression and self-harm behavior, which causes her to pull out her hair and pick at the skin on her stomach and arms.  She also testified that H.W. has a heart condition, due to her dependency on cocaine at birth, and that J.W. was not seeking appropriate medical attention for her.  Torres reported that on visitation to H.W.’s home, which did not have electricity, H.W.’s appearance was dirty, her hair was unkempt, and the home did not have a place for her to sleep.

Dianne Ames, H.W.’s caseworker, outlined the family service plan created for J.W. to regain custody of H.W.  For a year, the Department asked J.W. to demonstrate an ability to maintain a drug-free lifestyle, which included finding drug-free housing and taking random drug tests.  J.W. was also asked to provide payment stubs indicating steady employment, utility receipts, and an updated address within 72 hours of any relocation.  Finally, he was asked to participate in individual counseling, anger management, parenting skills classes, and to refrain from criminal behavior.  Ames testified that at the time of trial, J.W. had not provided the Department with proof of completion of any of the Department’s requests.  Ames tried to get in contact with J.W. by telephone and with letters on numerous occasions, but he never responded.  She also testified that of the eight court proceedings involving J.W.’s parental rights, he had only attended two.  J.W. did not attend trial, and his counsel did not present any evidence contradicting the Department’s evidence.

            Using the appropriate standards of review for legal and factual sufficiency, we conclude that "the evidence is such that a factfinder could reasonably form a firm belief or conviction" that J.W. knowingly placed or knowingly allowed H.W. to remain in conditions or surroundings that endangered her physical or emotional well-being and that J.W. engaged in conduct or knowingly placed H.W. with persons who engaged in conduct that endangered her physical or emotional well-being.  J.F.C., 96 S.W.3d at 266.  The evidence is thus legally and factually sufficient to support the trial court’s findings on the endangerment grounds.  We overrule J.W.’s first issue.

Remaining Grounds for Termination    

            The trial court’s findings of fact contain affirmative findings on four predicate grounds for termination of J.W.’s parental rights.  Because we have found the evidence legally and factually sufficient to support the finding that J.W. engaged in conduct that endangered H.W.’s physical and emotional well-being, we need not address the sufficiency of the evidence to support the other three predicate grounds.  See In re T.N.F., 205 S.W.3d 625, 629 (Tex. App.—Waco 2006, pet. denied).

            For termination of the parent-child relationship, the factfinder must make an affirmative finding: (1) on at least one predicate ground for termination; and (2) that termination is in the best interest of the child.  See Tex. Fam. Code Ann. § 161.001.  Because J.W. does not challenge the trial court’s best interest finding in his appellant’s brief, we do not address the sufficiency of the evidence to support the court’s best-interest finding.  See In re D.M., 244 S.W.3d 397, 403 (Tex. App.—Waco 2007, no pet.) (Reyna, J., concurring) (“It is well-settled that this Court cannot address an issue in a civil appeal which has not been raised as an issue or point of error in the appealing party’s brief.”).

Findings of Fact and Conclusions of Law

 

In his second issue, J.W. complains that the trial court failed to file findings of fact and conclusions of law.  He claims that he timely requested findings of fact and conclusions of law under Civil Procedure rules 296 and 297.  Under Rule 296, a party may request the court to make written findings of fact and conclusions of law within twenty days after the judgment is signed.  Tex. R. Civ. P. 296.  However, the record reflects that J.W. filed a Notice of Past Due Findings of Fact and Conclusions of Law on February 27, 2008, forty-one days after the termination order was signed.

The clerk’s record does not reflect that J.W. ever filed an initial request for findings of fact and conclusions of law.  Because J.W. failed to formally request findings of fact and conclusions of law within twenty days of the trial court’s judgment, his notice of past due findings of fact and conclusions of law is untimely, and he has failed to preserve his claim regarding lack of such findings for appellate review.  Strangel v. Perkins, 87 S.W.3d 706, 709 (Tex. App.—Dallas 2002, no pet.); DeMello v. NBC Bank-Perrin Beitel, 762 S.W.2d 379, 381 (Tex. App.—San Antonio 1988, no pet.).  We overrule J.W.’s second issue.

Conclusion

Because we have found the evidence sufficient to support at least one predicate act under section 161.001(1) and J.W. failed to challenge the court’s best interest finding and make a timely request for findings of fact and conclusions of law, the trial court’s order is affirmed.

 

 

 

BILL VANCE

Justice

 

 

Before Chief Justice Gray,

            Justice Vance, and

            Justice Reyna

Affirmed

Opinion delivered and filed October 29, 2008

[CV06]